Zowie Mason et al vs Aurelia Amezcua et al

Case No. 22CV401891 Motion for Summary Judgment Before the court is defendants Costco Wholesale Corporation and Ricky Lozano Reyna’s motion for summary judgment. Pursuant to California Rule of Court 3.1308, the court issues its tentative ruling as follows.

I. BACKGROUND On or about August 28, 2021, Heidi Maul, Michael Maul, and Lisa Trevino (“Decedents”) were traveling eastbound on SR-132. (Complaint, ¶¶14, 16, and 17). At the same time, defendants Aurelia Amezcua (“Amezcua”) and Ricky Lazaro Reyna (“Reyna”) were traveling in separate vehicles westbound on SR-132. (Complaint, ¶17).

Defendant Reyna was not staying in his lane, which caused other drivers fear and concern. (Complaint, ¶19). To avoid defendant Reyna’s unsafe driving, defendant Amezcua attempted to overtake defendant Reyna. (Id.). Defendant Amezcua failed to exercise reasonable care when attempting to overtake [defendant Reyna’s vehicle] and struck Decedents’ vehicle causing Decedents to lose their lives. (Complaint, ¶18).

Defendant Costco Wholesale Corporation (“Costco”) owned or controlled the vehicle driven by defendant Reyna. (Complaint, ¶20). Defendant Reyna operated the vehicle with the express or implied authority/ permission of defendant Costco, as an agent of defendant Costco while acting in the course and scope of his agency or employment with defendant Costco. (Id.). Defendant Costco knew or should have known defendant Reyna was unfit to operate the vehicle and was negligent in hiring, retaining, training, and entrusting the vehicle to defendant Reyna. (Id.).

On July 1, 2022, plaintiffs Zowie Mason, the daughter and stepdaughter of decedents Heidi Maul and Michael Maul; Gilbert Hernandez and Miguel Trevino, sons of decedent Lisa Trevino, (collectively, “Plaintiffs”) filed a complaint against defendants Amezcua, Reyna, and Costco asserting causes of action for: (1) Negligence (2) Wrongful Death

On September 16, 2022, defendant Amezcua filed her answer to Plaintiffs’ complaint.

Also on September 16, 2022, defendants Costco and Reyna filed a Judicial Council form cross-complaint against codefendant Amezcua asserting claims for: (1) Indemnification (2) Apportionment of Fault (3) Contribution

On November 17, 2022, cross-defendant Amezcua filed an answer to Costco and Reyna’s cross-complaint.

On December 13, 2022, defendants Costco and Reyna filed an answer to Plaintiffs’ complaint.

On December 11, 2023, defendants Costco and Reyna filed the motion now presently before the court, a motion for summary judgment of Plaintiffs’ complaint. Hearing on defendants Costco and Reyna’s motion has been continued by this court seven times, often at Plaintiffs’ request due to Amezcua’s criminal prosecution and consequent unavailability for deposition. The original hearing date for this motion was March 5, 2024 and has been continued to May 21, 2024; September 10, 2024; December 12, 2024; April 17, 2025; August 26, 2025; January 6, 2026; and now May 21, 2026. 3

On February 5, 2026, the court issued an order granting defendant Amezcua’s motion to consolidate this case with case number 24CV452173, Magana, et al. v. Amezcua, et al.

II. LEGAL STANDARD The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843). In analyzing motions for summary judgment or adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v.

Oakshade Town Center (2005) 135 Cal.App.4th 289, 294). “[T]he initial burden is always on the moving party to make a prima facia 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 or summary adjudication “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, or that there is a complete defense to the cause of action.” (Code Civ.

Proc., § 437c, subd. (p)(2)). If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468). Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at 849-50). Therefore, summary judgment or adjudication is granted when, after the Court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law. (Code Civ.

Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741).

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854)(emphasis added). It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891). The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Id.).

The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855). “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.” (Code Civ. Proc., § 437c, subd. (p)(2)). The plaintiff may not merely rely on 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.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v.

Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467).

III. ANALYSIS A. REQUEST FOR CONTINUANCE In opposition, Plaintiffs again request a continuance pursuant to Code of Civil Procedure section 437c, subdivision (h). Code of Civil Procedure section 437c, subdivision (h) states, in pertinent part, that, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.”

“To mitigate summary judgment’s harshness, the statute’s drafters included a provision making continuances— which are normally a matter within the broad discretion of trial courts—virtually mandated upon a good faith showing

by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395 (Bahl); internal punctuation omitted).

However, “[i]t is not enough to ask for a continuance . . . in opposing points and authorities. The statute requires that the opposition be accompanied by affidavits or declarations showing facts to justify opposition may exist; or that such showing be made by an ex parte motion on or before the date the opposition is due.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2020) ¶10:207.10, pp. 10-88 to 10-89). In Hill v. Physicians & Surgeons Exch. (1990) 225 Cal.App.3d 1, 7 – 8, the “pleadings contain[ed] no affidavit detailing facts to show the existence of evidence supporting her theory of coverage and the reasons why this evidence could not be presented at the time of the hearing.” “The purpose of the affidavit required by Code of Civil Procedure 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion.” (Scott v.

CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325 – 326).

The opposing party’s declaration in support of a motion to continue the hearing should show the following: - Facts establishing a likelihood that controverting evidence may exist and why the information sough is essential to opposing the motion; - The specific reasons why such evidence cannot be presented at the present time; - An estimate of the time necessary to obtain such evidence; and - The specific steps or procedures the opposing party intends to utilize to obtain such evidence. (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2020) ¶10:207.15, p. 10-89 citing Code Civ. Proc., §437c, subd. (h) and Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (Cooksey), et al.).

A declaration in support of a request for continuance under section 437c, subdivision (h) must show: “(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. [Citations.]” [Citation.] “The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion. [Citations.]” [Citation.] “It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show ‘facts essential to justify opposition may exist.’ [Citation.] (Cooksey, supra, 123 Cal.App.4th at p. 254).

Where a party requests a continuance under the statute and satisfies its conditions, the determination whether to grant the request is vested in the discretion of the trial court, and will not be disturbed on appeal unless an abuse of discretion appears. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 100 [20 Cal. Rptr. 3d 1]; Desaigoudar v. Meyercord (2003) 108 Cal.App.4th 173, 190 [133 Cal. Rptr. 2d 408]). In exercising its discretion, the court may properly consider the extent to which the requesting party's failure to secure the contemplated evidence more seasonably results from a lack of diligence on his part. (Desaigoudar v.

Meyercord, supra, 108 Cal.App.4th at p. 190 [“Where a lack of diligence results in a party's having insufficient information to know if facts essential to justify opposition may exist, and the party is therefore unable to provide the requisite affidavit under Code of Civil Procedure section 437c, subdivision (h), the trial judge may deny the request for continuance of the motion.”]; Knapp v. Doherty, supra, 123 Cal.App.4th 76, 102, quoting FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 76 [41 Cal.

Rptr. 2d 404] [request for discovery properly denied where requesting party offered “ ‘no justification for the failure to have commenced the use of appropriate discovery tools at an earlier date’ ”]; Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257 [19 Cal. Rptr. 3d 810] [“majority of courts” have held that “lack of diligence may be a ground for denying a

request for a continuance of a summary judgment motion hearing”]; but see Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398 [107 Cal. Rptr. 2d 270] [questioning whether diligence plays any proper role in the matter, given absence of any statutory reference to it]). [Footnote.]. (Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038 (Rodriguez)).

“[T]he court must determine whether the party requesting the continuance has established good cause for it. That determination is within the court’s discretion.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2020) ¶10:208, pp. 10-90 to 10-91 citing Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716, et al.). “Usually, the court’s discretion should be exercised in favor of granting a continuance: ‘The interests at stake are too high to sanction the denial of a continuance without a good reason.’” (Id. citing Frazee v. Seely (2002) 95 Cal.App.4th 627, 634; et al.).

Factors the court may consider in deciding to continue include: - The length of time the case has been pending. [46 months: Complaint filed 1 July 2022]. - The length of time the requesting party had to oppose the motion. [30 months: MSJ filed 11 December 2023]. - The proximity of the trial date or the 30-day discovery cut-off before trial. [No trial date]. - Whether the continuance motion could have been made earlier. - Prior continuances for this purpose. [As noted above]. - Whether the evidence sought is “essential” to the issue to be adjudicated. [As set forth in the supporting declaration/ opposition]. - Death or serious illness of an attorney or party is normally good cause for granting a continuance. [Not applicable.] (Id. at ¶10:208.1, pp. 10-91 to 10-92).

Here, Plaintiffs’ counsel declares he propounded discovery to defendant Costco seeking documents related to GPS tracking data; that responses to the discovery are “essential” to justify the opposition and support [defendant] Amezcua’s deposition; that responses are past due and defendant has confirmed responses are forthcoming.1

Attached as Exhibit F to Plaintiffs’ counsel’s declaration is a copy of Plaintiff’s Request for Production of Documents, Set Two to Defendant, Costco Wholesale Corporation (“RPD”). The RPD is dated March 16, 2026 and is accompanied by proof of electronic service on the same date to, among others, defendant Costco’s counsel. By the court’s calculation, responses to this RPD would have been due April 17, 2026.

Attached as Exhibit E to Plaintiffs’ counsel’s declaration is a copy of the deposition transcript for the deposition of defendant Amezcua. The deposition transcript indicates January 8, 2026 as the date of defendant Amezcua’s deposition.

Although Plaintiffs have been unable to depose defendant Amezcua until January 8, 2026, it is the court’s opinion that Plaintiffs could have sought the discovery that they now contend is necessary to fending off defendants’ motion for summary judgment well before defendant Amezcua’s deposition. Plaintiffs have not sufficiently demonstrated that the discovery they have sought is essential to oppose defendants’ motion for summary judgment. This case has been pending for almost four years. Defendant Costco and Reyna’s motion for summary judgment has been pending for more than two and a half years. As detailed above, the court has granted Plaintiffs’ multiple requests for continuances. In view of these circumstances and findings, Plaintiffs’ request for a further continuance is DENIED.

1 See ¶2 to the Declaration of Tanner E. Combs in Support of Opposition to Defendant Costco Wholesale Corporation and Ricky Lazaro Reyna’s Motion for Summary Judgment, etc. 6

B. WRONGFUL DEATH AND NEGLIGENCE Plaintiffs’ complaint asserts causes of action for wrongful death and negligence. “Wrongful death is a statutorily created cause of action for pecuniary loss brought by heirs against a person who causes the death of another by a wrongful act or neglect. It is original in nature and does not represent a right of action that the deceased would have had if the deceased had survived the injury. [Citations.]. It is a cause of action for the heir who recovers for the pecuniary loss suffered on account of the death of the relative. [Citation.]

In any action for wrongful death resulting from negligence, the complaint must contain allegations as to all the elements of actionable negligence. [Citation.] Negligence involves the violation of a legal duty imposed by statute, contract or otherwise, by the defendant to the person injured, e.g., the deceased in a wrongful death action.” (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 105).

“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673).

Defendants Costco and Reyna move for summary judgment by arguing, initially, that they did not engage in any negligent conduct. To support this assertion, defendants Costco and Reyna proffer the following facts: At the location of the subject collision, Highway 132 (“SR-132”) is a two-lane road with lanes traveling eastbound and westbound.2 The center of the roadway is divided by a double-yellow line.3 For the 90 seconds prior to the collision, until 5-10 seconds prior to the collisions, defendant Amezcua’s vehicle was behind defendant Reyna’s vehicle on the westbound lane of SR-132.4 For the 90 seconds prior to the collision, defendant Reyna’s vehicle remained in its lane of traffic traveling westbound on SR-132.5 For the 90 seconds prior to the collision, defendant Reyna’s vehicle was traveling at a speed commensurate with the lane of travel.6

In the 90 seconds prior to the collision, until 5 – 10 seconds prior to the collision, defendant Reyna never received any alert, signal or indication that defendant Amezcua intended to overtake the tractor-trailer that defendant Reyna operated.7 Defendant Reyna was never aware that defendant Amezcua intended to overtake his vehicle.8 At 5-10 seconds prior to the collision, defendant Amezcua attempted to overtake the tractor-trailer operated by defendant Reyna.9 In the 5-10 seconds prior to the collision, while attempting to overtake defendant Reyna’s vehicle, defendant Amezcua’s vehicle crossed the double-yellow lines onto the eastbound lane of SR-132 while traveling Westbound.10 There was no emergency prior to the incident that would explain why defendant Amezcua’s vehicle crossed the double-yellow line.11 Defendant Amezcua’s vehicle collided head-on with [Decedents’] vehicle.12 Defendant Reyna’s vehicle never made contact with [Decedent’s] vehicle. 13 Defendant Reyna’s vehicle never made contact

2 See Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (“Defendants’ UMF”), Fact No.

2. The court notes that a number of the facts in Defendants’ UMF are based upon statements made in the Declaration of Ricky Lazaro Reyna in Support of Motion for Summary Judgment (“Declaration Reyna”) which defendants purportedly served, by electronic mail, on Plaintiffs and defendant Amezcua’s counsel on December 11, 2023 according to the Proof of Service Re: Motion For Summary Judgment filed on December 11, 2023. However, in reviewing the court records, the Declaration Reyna was not filed on December 11, 2023.

Court records reflect the Declaration Reyna was filed and served February 20, 2024. 3 Id. 4 See Defendants’ UMF, Fact No. 3. 5 See Defendants’ UMF, Fact No. 4. 6 See Defendants’ UMF, Fact No. 5. 7 See Defendants’ UMF, Fact No. 6. 8 Id. 9 See Defendants’ UMF, Fact No. 7. 10 See Defendants’ UMF, Fact No. 8 11 See Defendants’ UMF, Fact No. 9. 12 See Defendants’ UMF, Fact No. 10. 13 See Defendants’ UMF, Fact No. 14. 7

with defendant Amezcua’s vehicle.14 The investigating law enforcement personnel did not find that defendant Reyna had any role in the subject accident.15

In opposition, Plaintiffs proffer evidence in conflict with the defendants’ evidence, thereby creating a triable issue of material fact with regard to whether defendant Reyna operated his vehicle in a negligent manner. Specifically, defendant Amezcua testified she saw the defendant Costco truck in front of her weaving in the road and “moving to the sides;” in some instances, going over the yellow lines.16 Defendant Amezcua attempted to pass the [defendant Costco] truck multiple times and she testified the truck prevented her from passing as if “[defendant Reyna] didn’t want me to pass it.”17 As defendant Amezcua was attempting to pass the [defendant Costco] semi-truck, the [defendant Costco] truck accelerated and did not let her pass.18 Defendant Amezcua attempted to pass the [defendant Costco] semi on other attempts before the collision and the [defendant Costco] truck prevented her from making the lane change.19 In short, the evidence submitted to the court by the parties is in conflict with regard to whether defendant Reyna was operating his vehicle in a manner which was negligent or not.

Defendants Costco and Reyna argue further that even if they were negligent in their conduct, their conduct was not a proximate cause of Plaintiffs’ harm. “Causation requires proof that the defendant’s conduct was a ‘substantial factor’ in bringing about the harm to the plaintiff.” (Williams v. Wraxall (1995) 33 Cal.App.4th 120, 132). “Like breach of duty, causation also is ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion.” (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864; see also Capolungo v. Bondi (1986) 179 Cal.App.3d 346, 354—“the issue of proximate cause ordinarily presents a question of fact. However, it becomes a question of law when the facts of the case permit only one reasonable conclusion.”).

Defendants Costco and Reyna again point to the same evidence cited above to argue that there is no evidence defendant Reyna contributed to the accident which led to Decedents’ death. However, the evidence submitted by Plaintiffs in opposition is in direct conflict with that submitted by Plaintiffs and creates a triable issue of material fact with regard to whether defendant Reyna’s conduct contributed to the accident.

Even if defendants Costco and Reyna were a cause in fact in bringing about Decedents’ death, defendants Costco and Reyna contend they should be absolved of liability for public policy reasons. We have recognized that proximate cause has two aspects. “‘One is cause in fact. An act is a cause in fact if it is a necessary antecedent of an event.’” (Ferguson v. Lieff, Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1045 [135 Cal. Rptr. 2d 46, 69 P.3d 965] (Ferguson)). This is sometimes referred to as “but for” causation. (e.g., Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 784 [122 Cal. Rptr. 3d 313, 248 P.3d 1170].) [Footnote omitted.].

The second aspect of proximate cause “focuses on public policy considerations. Because the purported [factual] causes of an event may be traced back to the dawn of humanity, the law has imposed additional ‘limitations on liability other than simple causality.’ [Citation.] ‘These additional limitations are related not only to the degree of connection between the conduct and the injury, but also with public policy.’ [Citation.] Thus, ‘proximate cause “is ordinarily concerned, not with the fact of causation, but with the various considerations of policy that limit an actor's responsibility for the

14 See Defendants’ UMF, Fact No. 15. 15 See Defendants’ UMF, Fact No. 16. 16 See Plaintiffs’ Additional Material Facts (“AMF”), Fact No. 1. 17 See Plaintiffs’ AMF, Fact No. 3. 18 See Plaintiffs’ AMF, Fact No. 6. 19 See Plaintiffs’ AFM, Fact No. 7. 8

consequences of his conduct.”’ [Citation.]” (Ferguson, supra, 30 Cal.4th at p. 1045). As Witkin puts it, “[t]he doctrine of proximate cause limits liability; i.e., in certain situations where the defendant's conduct is an actual cause of the harm, the defendant will nevertheless be absolved because of the manner in which the injury occurred. ... Rules of legal cause ... operate to relieve the defendant whose conduct is a cause in fact of the injury, where it would be considered unjust to hold him or her legally responsible.” (6 Witkin, Summary of Cal. Law, supra, Torts, § 1186, p. 553)(State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 352-353 (State Dept.).

Even so, the Court in State Dept. acknowledged, “proximate cause is a question of fact which cannot be decided as a matter of law [unless] the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact.” (Id. at p. 353). “As a matter of practical necessity, legal responsibility must be limited to those causes which are so close to the result, or of such significance as causes, that the law is justified in making the defendant pay.” (Modisette v. Apple Inc. (2018) 30 Cal.App.5th 136, 154).

Defendants contend here that defendant Reyna’s conduct did not directly put Decedent in danger again relying on the proffered evidence that defendant Reyna made no contact with Decedent’s vehicle or defendant Amezcua’s vehicle; defendant Reyna did not leave his lane; defendant Reyna was not driving too slowly; and defendant Amezcua made the decision to cross into oncoming traffic in an attempt to overtake defendant Reyna. If these were the only undisputed facts at issue, the court might possibly consider making a determination of proximate cause as a matter of law. However, that is not the case here as Plaintiffs have proffered evidence placing into dispute the extent of defendant Reyna’s conduct. Proximate cause is not a question of law under these circumstances.

Finally, assuming arguendo that their conduct was a proximate cause of Decedents’ death, defendants Costco and Reyna argue defendant Amezcua’s conduct is a superseding cause relieving defendants Costco and Reyna from liability.

“A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about. If the cause is superseding, it relieves the actor from liability whether or not that person's negligence was a substantial factor in bringing about the harm.” (Brewer v. Teano (1995) 40 Cal.App.4th 1024, 1031 (Brewer); citations and punctuation omitted.). “ ‘A superseding cause is an act of a third person or other force which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about.’ (Rest.2d Torts, § 440).

In California the doctrine requires more than mere negligence on the part of the intervening actor. ‘[T]he fact that an intervening act of a third person is done in a negligent manner does not make it a superseding cause if a reasonable man knowing the situation existing when the act of the third person is done would not regard it as highly extraordinary that the third person so acted or the act is a normal response to a situation created by the defendant's conduct and the manner in which the intervening act is done is not extraordinarily negligent.’ (Stewart v.

Cox (1961) 55 Cal.2d 857, 863–864 [13 Cal.Rptr. 521, 362 P.2d 345]); (Doupnik v. General Motors Corp., supra, 225 Cal.App.3d at p. 863, 275 Cal.Rptr. 715).

However, “[t]hird party negligence which is the immediate cause of an injury may be viewed as a superseding cause when it is so highly extraordinary as to be unforeseeable. (Landeros v. Flood (1976) 17 Cal.3d 399, 411 [131 Cal.Rptr. 69, 551 P.2d 389]; Stewart v. Cox [supra] 55 Cal.2d [at p.] 864 [13 Cal.Rptr. 521, 362 P.2d 345].) ‘The foreseeability required is of the risk of harm, not of the particular intervening act. In other words, the defendant may be liable if his conduct was “a substantial factor” in bringing about the harm, though he neither foresaw nor should have foreseen the extent of the harm

or the manner in which it occurred.’ (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 976, p. 367). It must appear that the intervening act has produced ‘harm of a kind and degree so far beyond the risk the original tortfeasor should have foreseen that the law deems it unfair to hold him responsible.’ (Soule v. General Motors Corp., supra, 8 Cal.4th at p. 573, fn. 9 [34 Cal.Rptr.2d 607, 882 P.2d 298]).” (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 18–19, 56 Cal.Rptr.2d 455.)(Perez v. VAS S.p.A. (2010) 188 Cal.App.4th 658, 680–681).

“In many cases, the issue whether an intervening force is superseding or not is a question of fact for the jury to decide. But, like proximate cause generally, it is a matter of law where only one reasonable conclusion may be reached.” (Brewer, supra, 40 Cal.App.4th at 1031).

Again, the difficulty presented here for the court is that the facts with regard to what transpired are in dispute. Under these circumstances, the court cannot determine as a matter of law whether defendant Amezcua’s conduct is a superseding cause.

IV. CONCLUSION Based on the foregoing, Defendants Costco and Reyna’s motion for summary judgment is DENIED. Court will prepare the formal Order.

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