Robert Kimball vs City of Santa Barbara et al

Case Number

22CV01181

Case Type

Hearing Date / Time

Fri, 12/15/2023 - 10:00

Nature of Proceedings

Motion for Summary Judgment

Tentative Ruling

For the reasons set forth herein, Tierra Contracting Inc’s motion for summary judgment or, in the alternative, motion for summary adjudication is denied.

Background:

This action commenced on March 25, 2022, with the filing of the complaint by plaintiff Robert Kimball against defendants City of Santa Barbara (“City”) and C.A. Rasmussen, Inc. (“Rasmussen”) for dangerous condition of public property, negligence, and premises liability.

As alleged in the complaint:

“On February 28, 2021, at approximately 7:30 p.m., Plaintiff Robert Kimball was riding his bicycle on Modoc Road north of the intersection with Ferrara Way in the City of Santa Barbara, County of Santa Barbara, State of California.” (Complaint, ¶ 8.) “As Plaintiff Robert Kimball rode his bicycle in the bicycle lane on Modoc Road, he encountered temporary cones changing the road configuration and shifting vehicle traffic in his direction. The traffic cone configuration caused a vehicle approaching from the opposite direction to move toward Plaintiff’s bicycle lane, as that vehicle followed the cone pattern. To avoid an accident with the approaching vehicle, Plaintiff was forced quickly to his right. This caused Plaintiff to hit either a cone or the new curb construction and tumble violently onto gravel and concrete. This caused Plaintiff to suffer severe personal injuries including but not limited to a fractured neck, severe right arm injury, nerve damage, and numerous scrapes and contusions throughout his body.” (Complaint, ¶ 9.)

“On or before the date of the Incident, Defendant City had contracted with Defendant Rasmussen to perform improvements on Las Positas and Modoc Roads as part of the Las Positas & Modoc Roads Multiuse Path Project.” (Complaint, ¶ 10.) “[A]s part of the Multiuse Path Project, Defendant Rasmussen submitted a traffic control plan to the City and was in charge of traffic control during the Construction.” (Complaint, ¶ 11.) “City approved and ratified the proposed traffic control plan from Rasmussen.” (Complaint, ¶ 12.) “[O]n the date of the Incident, the cone and traffic configuration which caused Plaintiff’s accident was placed by Rasmussen employees as part of the City-approved traffic control plan during construction.” (Complaint, ¶ 13.)

“At the time of the Incident, the roadway was not sufficiently illuminated, contributing to the Incident.” (Complaint, ¶ 15.) Several dangerous conditions existed at the site of the incident at the time of the incident. (Complaint, ¶ 18.)

As to Rasmussen and Does 1-20: “Each defendant owed a duty of care to all reasonably foreseeable people, including the Plaintiff, to own, lease, license, maintain, manage, plan, design, control, operate, install, staff, build, supervise, repair, fix, and service the property it owned, leased, maintained, managed, benefited from, repaired, or otherwise controlled and to discover, identify, warn, remedy, repair, replace, and protect against any unsafe condition or anything that could be reasonably expected to harm others.” (Complaint, ¶ 27.) “ This duty of care included warning of, repairing, and fully remedying any danger to the public from the improper or unsafe configuration of the street during conduction for those areas owned, leased, licensed, managed, maintained, serviced, or otherwise controlled by any defendant or located on, abutting, or adjacent to property owned, leased, licensed, managed, maintained, serviced, or otherwise controlled by any defendant.” (Complaint, ¶ 28.) “Each defendant breached this duty and negligently owned, leased, licensed, managed, maintained, serviced, constructed, or otherwise controlled the area of the SUBJECT STREET, and their constituent parts, and/or the property located on, abutting, or adjacent to property owned, leased, licensed, managed, maintained, serviced, or otherwise controlled by any defendant. This breach includes, but is not limited to, failing to warn of, repair, or remedy the improper and unsafe traffic and street configuration during construction.”

“Defendant Rasmussen, through its contract with the City for the construction of the Multiuse Path, owned, leased, occupied, or controlled the Subject Street in the area where the Incident occurred.” (Complaint, ¶ 33.) “Defendant Rasmussen was negligent in its use or maintenance of the Subject Street in the area where the Incident occurred, including, but not limited to, in its placement of the temporary street configuration in a way that forced bicyclists lawfully traversing the street into a curb or other protruding object in order to avoid vehicles.” (Complaint, ¶ 33.)

On May 18, 2022, City answered plaintiff’s complaint asserting a general denial and setting forth fourteen affirmative defenses. On the same day, City filed a cross-complaint for express contractual indemnity, equitable indemnification, and apportionment of fault against Rasmussen and Tierra Contracting, Inc. As relevant to the present motion, City, without admitting any of plaintiff’s allegations, asserts that to the extent that plaintiff was injured, cross-defendants are liable because they had a duty to inspect and maintain the accident location. (Cross-Complaint, ¶¶ 5-9.) Rasmussen “entered into a construction contract with [City] to perform improvements on Las Positas and Modoc Roads as part of the Las Positas & Modoc Roads Multiuse Path Project, Bid No. 3792.” (Cross-Complaint, ¶ 12.) Tierra “entered into a construction contract with [City] to perform FY20 Water Main Replacement Project, Bid No. 5814.” (Cross-Complaint, ¶ 21.)

“[T]he injuries alleged and damages sought by the Plaintiff in this lawsuit are on account of a bodily injury to a person which arises out of, and is connected with, either the construction activities or maintenance of the FY20 Water Main Replacement Project, as contemplated by the Tierra Agreement in that they arose out of or in connection with the acts or omissions of Cross-defendant, its employees, Subcontractors, representatives, or agents, in performing the work or in failing to comply with any obligation of Cross-Defendant under the Tierra Agreement.” (Cross-Complaint, ¶ 24.)

On May 27, 2022, plaintiff filed an amendment to the complaint to substitute in Tierra as Doe 1.

Tierra now moves for summary judgment, or, in the alternative, summary adjudication of the negligence and premises liability causes of action on the grounds that there are no triable issues of material fact as to the causes of action. Specifically, Tierra argues that the negligence cause of action has no merit because plaintiff lacks, and cannot obtain, evidence necessary to prove that Tierra breached a duty owed to plaintiff and that the premises liability cause of action has no merit because plaintiff lacks, and cannot obtain, evidence establishing that Tierra had ownership, possession, or control of the premises where the incident occurred. (Notice of Motion, p. 2, ll. 13-19.)

The motion is opposed by plaintiff as well as Rasmussen.

Analysis:

As an initial matter: “All electronic documents must be in text searchable format and must comply with the formatting and content requirements of the California Rules of Court for electronic documents, including particularly CRC 3.1110(f)(4) requiring electronic bookmarks.” (Super. Ct. Santa Barbara County, Local Rules, rule 1012 (c)(1).)

“Unless they are submitted by a self-represented party, electronic exhibits must include electronic bookmarks with links to the first page of each exhibit and with bookmark titles that identify the exhibit number or letter and briefly describe the exhibit.” (Cal. Rules of Court, rule 3.110 (f)(4).)

“Compliance with all of the formatting requirements for electronic documents is extremely important for the court’s timely consideration of e-filed documents. In cases of noncompliance, the court may, in its discretion, order any, or all, of the following in addition to any other sanction permitted by law: (i) the noncomplying document to be stricken as improperly filed; (ii) the continuance of the hearing to which the noncomplying document pertains; or, (iii) the imposition of monetary sanctions for violation of the California Rules of Court or these Local Rules, following adequate notice and an opportunity to be heard.” (Super. Ct. Santa Barbara County, Local Rules, rule 1012 (c)(2).)

Rasmussen provided over 2,000 pages of exhibits, many of which are irrelevant to the issues raised by the present motion, such as plaintiff’s medical records, and he did not bookmark the exhibits as required. Counsel is reminded of their obligation to comply with the Local Rules and the California Rules of Court for any future filings with the court.

            Standard on Summary Judgment

A defendant’s motion for summary judgment asks the court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The court must determine from the evidence presented 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. (Code Civ. Proc., § 437c, subd. (c).)    

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain an adjudication in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) “[W]e liberally construe plaintiff’s evidentiary submissions and strictly scrutinize defendant’s own evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

In resolving the motion, the court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

            Completion of Tierra’s Project

Tierra’s first argument is that it was only responsible for work on the north side of the road and that it had completed its project prior to the incident. The parties concede that the incident occurred on the south side of the road.

Tierra argues: “Tierra’s contractual obligations pertained exclusively to the Water Main Project situated on the north side of the road and did not concern any responsibility for traffic control on the south side of Modoc Road.” (Motion, p. 8, ll. 14-16.) “Tierra had fulfilled all contractual duties related to the installation of the waterline pursuant to the Water Main Project on February 24, 2021—four days before the February 28th accident - including the removal of all construction equipment, debris, and traffic control devices leaving no presence at Modoc Road. (Motion, p. 8, ll. 17-20.)

In support of the argument that the obligations pertained exclusively to the north side of the road, Tierra cites its undisputed material fact (“UMF”) No. 5 which identifies as supporting evidence the contract between City and Tierra, as well as the deposition testimony of Eric Bittle. In its separate statement, Tierra identifies the contract between City and Tierra as Exhibit 19. Exhibit 19 is actually the contract between City and Rasmussen. Exhibit 9 is the contract between City and Tierra. Tierra does not identify any specific paragraph of the contract that limits traffic control to only the north side of the road and the court finds nothing in the contract that supports the contention. The cited deposition testimony of Bittle, a City engineer for right-of-way and inspection, is mostly about matters other than Tierra’s UMF No. 5. However, at p. 55, ll. 19-22, Bittle testified that Tierra’s work was limited to the north side of the road.

In opposition to the argument that Tierra’s obligations pertained exclusively to the north side of the road, UMF No. 5 is disputed. Plaintiff presents as supporting evidence the deposition of Blair Douglas, the contract between City and Tierra, the Deposition of Bittle, and the deposition of Ira Smith. Rasmussen largely mirrors plaintiff’s disputing of UMF No. 5 but provides additional evidence in support.

Douglas was designated by Tierra as its person most knowledgeable regarding the contract between City and Tierra for the work performed on Modoc Road in February 2021, as the person most knowledgeable regarding maintenance of Modoc Road between Calle De Los Amigos and Las Positas Road in the years 2021 and 2022, and the person most knowledgeable regarding all repairs made to Modoc Road between Calle De Los Amigos and Las Positas in the years 2020 and 2021. (Douglas Depo., p. 16, l. 22-p. 17, l. 14.) Douglas testified that Tierra had an obligation to coordinate its work with Rasmussen, which was performing concurrent work for City along Modoc Road in February 2021. (Douglas Depo., p. 60, l. 20-p. 61, l. 11; p. 83, ll. 11-15.) Douglas also testified that Tierra had an obligation to make sure that on the weekends the full width of the traveled way was open for use by public traffic including bicycles. (Douglas Depo., p. 87, l. 12-p. 88, l. 4.) Douglas further identified where the water main work was being performed and where traffic control cones, on both the right and left sides of Modoc road, were placed when Tierra was performing work on the water mains project. (Douglas Depo., p. 112, l. 21-p. 113, l. 19.) Douglas testified that there was “overlapping traffic control, specifically there was overlapping traffic control that was placed on the southbound lane between Rasmussen and Tierra.” (Douglas Depo., ¶ 119, ll. 1-5.) Finally, when being shown pictures of the work site, Douglas acknowledged that some of Tierra’s traffic control cones were placed on both sides of the road and including the bike lane. (Douglas Depo, p. 132, l. 8-p. 134, l. 22.)

The contract between City and Tierra contains a provision that Tierra is to coordinate its work with “with other work being performed on or adjacent to the project site, including by any utility companies or agencies, and must avoid hindering, delaying, or interfering with the work of other contractor, individuals, or entities, and must ensure safe and reasonable site access and use as required or authorized by City.” (Contract, p. 44, ¶ 2.4.)

In addition to the testimony cited above, Bittle testified that although Tierra did not perform any work on the south side of the road, they may have done traffic control. (Bittle Depo., p. 55, l. 23-p. 56, l. 2.)

Smith is the person most knowledgeable of Tierra regarding several categories and topics. He verified that Tierra was required to coordinate their work with other contactors including traffic control. (Smith Depo., p. 44, l. 12-p. 45, l. 3.)

Reviewing the evidence submitted by both Tierra and the opposing parties shows that there is a triable issue of material fact as to whether Tierra performed any work on the south side of the road. Specifically, the testimony of Douglas tends to indicate that Tierra maintained traffic control devices on both sides of the road at some point in February 2021.

In support of the argument that it had completed the project prior to the incident, Tierra cites to its UMF Nos. 6-10. UMF No. 6 states: “Tierra had fulfilled all contractual duties related to the installation of the waterline pursuant to the Water Main Project on February 24, 2021—four days before the February 28th accident—including the removal of all construction equipment, debris, and traffic control devices leaving no presence at Modoc Road.” UMF No. 7 states: “Marisa Kahn (‘Ms. Kahn’) was one of the Persons Most Knowledgeable produced by the City of Santa Barbara.” UMF No. 8 states: “Ms. Kahn confirmed that Tierra had removed all of its equipment from the location of the accident as of February 24, 2021.” UMF No. 9 states: “Rasmussen was under contract to construct a multiuse pathway along the south side of the same road.” UMF No. 10 states: “The March 4, 2020, contract between Rasmussen and the City unambiguously delegated the responsibility of traffic control on the south side of Modoc Road to Rasmussen during the duration of the project.”

Evidence in support of Tierra’s arguments that it had completed the project prior to the incident includes  a Tierra Daily Work Report, the deposition of Marisa Kahn, the deposition of Mehdi Moussavian, the contract between City and Rasmussen, and Rasmussen’s Traffic Control Plan.

Kahn is a risk analyst for City and testified that Tierra had concluded all its work at the location of Modoc Road by February 24, 2021. (Kahn Depo., p. 44, ll. 4-7.) She also testified that, according to the “dailies report that [she] reviewed, as well as photographs that were taken by the inspector” it was her understanding that Tierra had removed all its equipment on February 24, 2021. (Kahn Depo., p. 47, ll. 1-6.) She also testified, when asked if she would disagree that Terra’s work was “done in June 2021,” that she had knowledge of “Tierra coming back to do something with striping and some paving.” (Kahn Depo., p. 47, ll. 10-14.)

Moussavian is employed by City as a project engineer. He testified that Tierra was done with the job on February 24, 2021, and “had nothing else out there.” (Moussavian Depo., p. 33, ll. 13-24; p. 35, ll. 13-16.).) He further testified that Tierra had removed all its equipment, including traffic control equipment, from the location of the project by February 24, 2021. (Moussavian Depo., p. 36, ll. 20-24.)

In opposition, plaintiff argues that between February 24, 2021, and June 22, 2021, Tierra performed restriping work along Modoc Road as part of the contract with City and that they did not complete the work until approximately June 25, 2021. In support, plaintiff cites supporting evidence contained in the Douglas deposition, the Moussavian deposition, the Bittle deposition, and the Kahn deposition.

Douglas testified that between February 24, 2021, and June 22, 2021, Tierra performed some minor striping along Modoc Road. (Douglas Depo., p. 49, ll. 18-21.) The additional striping work was performed pursuant to the contract with City. (Douglas Depo., p. 52, ll. 4-15.) All the work that Tierra performed along Modoc Road under the initial contract with City was not completed as of February 24, 2021. (Douglas Depo., p. 53, ll. 5-15.)

Moussavian testified that the striping was included in Tierra’s contract with City and that Tierra still had obligations under the contract, on Modoc Road on February 28, 2021 (the date of the incident). (Moussavian Depo., p. 43, ll. 5-12.)

Bittle testified that Tierra was done with its work on the Modoc project in March 2021, other than some paving that they did in June 2021. (Bittle Depo., p. 27, ll. 7-17.) Bittle further testified that Tierra was done with their primary work on the project by February 24, 2021, and that it was in a “travel-able condition” by that date, but that they returned for some striping and paving after that date. (Bittle Depo., p. 56, ll. 12-22.) Kahn confirmed that she had knowledge of Tierra coming back to the job site to do “something with striping and some paving.” (Kahn Depo., p. 47, ll. 10-14.)

Rasmussen provided undisputed evidence that on February 23, 2021, Tierra stripped out the old roadway of Modoc Road and paved it back with 72 tons of asphalt. (Smith Depo., p. 124, l. 19-p. 126, l. 8.) The overlay of the asphalt wiped out or removed the existing lane lines. (Douglas Depo., p. 49, ll. 8-21.)

“The court does not weigh evidence, but instead considers whether the evidence creates a triable issue of fact.” (Blue Mountain Enterprises, LLC. v. Owen (2022) 74 Cal.App.5th 537, 549.)

Having reviewed all the evidence in support of and in opposition to the motion, and having not weighed said evidence, the court will find that there are triable issues of material fact as to whether Tierra had completed its work prior to the subject accident, whether Tierra’s traffic control devices were still present at the scene on the date of the incident, and whether Tierra’s actions or inactions contributed to the incident.

Further, even if Tierra had removed all its equipment from the scene of the incident, prior to the occurrence of the incident, there are triable issues of material fact regarding whether Tierra complied with the contract and coordinated with Rasmussen regarding safety and traffic control and whether a failure to coordinate contributed to the incident. This is supported by quoted deposition testimony discussed above.

            Summary Adjudication

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“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 or cross-complainant 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).)

“A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

Tierra’s arguments regarding summary adjudication as to the negligence cause of action and the premises liability cause of action are the same as those for summary judgment.

Tierra’s motion for summary adjudication of each cause of action will be denied based upon the same reasons as discussed above.