Marin v. Department of Transportation

Filed 1/31/23; Certified for Publication 2/23/23 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
GABRIELA MARTINEZ MARIN
et al.,
Plaintiffs and Appellants, A161844
v.
DEPARTMENT OF (Alameda County
TRANSPORTATION, Super. Ct. No. RG16819984)
Defendant and Respondent.
This is an appeal from judgment in a wrongful death suit after the trial
court granted summary judgment in favor of defendant Department of
Transportation (DOT). Plaintiffs Gabriela Martinez Marin and Miguel Angel
Rodriguez Martinez, Jr., are the surviving family members of decedent
Miguel Angel Rodriguez De La Cruz, who was killed on a highway owned and
operated by the DOT. At the time, decedent was employed as a construction
worker for the DOT’s subcontractor O.C. Jones & Sons, Inc. (O.C. Jones).
Plaintiffs sued the DOT for, inter alia, creating a dangerous condition on
public property in violation of Government Code1 section 835 and vicarious
liability for its employees’ negligence under section 815.2.
Unless otherwise stated, all statutory citations herein are to the
1
Government Code.
1
On appeal, plaintiffs contend the court erred in granting summary
judgment for the DOT because admissible evidence was wrongfully excluded
and material issues of fact exist as to the DOT’s liability for decedent’s death.
We conclude plaintiffs failed to present evidence that the DOT retained
control over the construction site where decedent was killed and actually
exercised that retained control in such a way as to affirmatively contribute to
his injuries, as required under California law. (Sandoval v. Qualcomm Inc.
(2021) 12 Cal.5th 256, 264 (Sandoval).) Accordingly, we affirm the trial
court’s grant of summary judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Decedent was employed by O.C. Jones as a construction worker.
O.C. Jones was under contract with the DOT to perform construction work
along a stretch of Interstate 580 (I-580) within the City of Oakland
(hereinafter, project site). This work included grinding and removing old
asphalt and placing new asphalt. Due to heavy traffic along the I-580
corridor, much of this work was performed at night because it required lane
closures.
On or about September 19, 2015, decedent was part of a construction
crew tasked with removing asphalt at the project site. To conduct this work,
the DOT complied with O.C. Jones’s request to close the number 1 and
number 2 lanes of I-580. To mark the closure, between 7 and 8 p.m.,
O.C. Jones placed traffic signs and an arrow board. O.C. Jones then closed
and separated the two lanes using a cone pattern with reflective tape. In
addition, there were multiple trucks and machines at the project site. The
project site was further marked by multiple signs as well as by construction
and street lights. Several DOT employees were present at the project site at
2
this time of evening, including construction engineer Hana Khoury,
construction field engineer Markus Lansdowne, and inspector John Ruzic.
Sometime after 8 p.m., an O.C. Jones representative phoned Ruzic to
request a road closure in a different area in order to perform the work, which
Ruzic authorized.
Later that evening, it was discovered that O.C. Jones’s grinding
equipment was ineffective in removing certain pockets of asphalt and that
manual removal was required. Decedent’s team was thus tasked with
performing this work with hand and pneumatic tools. Decedent went to work
along the eight-foot-wide left shoulder adjacent to the number 1 lane,
removing the asphalt and then hand shoveling the loose material into a
bucket. This work, located away from the main paving operation, was
illuminated by headlights on a front loader and ladder-mounted lights on a
pickup truck with an air compressor trailer, both of which were positioned in
the left shoulder against a tall concrete retaining wall.
About 12:18 a.m. on September 19, 2015, decedent was speaking with
the operator of the front loader when a car operated by a drunk driver
entered the closed lanes of the project site and struck him before coming to a
stop in the number 2 lane. Decedent died on the scene from multiple blunt
traumatic injuries.
Plaintiffs, decedent’s wife and minor child, subsequently brought this
wrongful death lawsuit against the DOT, filing the operative second amended
complaint on December 20, 2017.2 This complaint asserted three causes of
action against the DOT: (1) vicarious liability for the negligence of its
2Plaintiffs also sued the Department of the California Highway Patrol,
Santos Andres Pablo-Carrillo and Does 1–30. However, the DOT is the only
defendant involved in this appeal.
3
employees (§ 815.2); (2) failure to discharge a mandatory duty (§ 815.6); and
(3) dangerous condition on public property (§ 835). Plaintiffs sought both
compensatory and punitive damages. The DOT subsequently answered the
second amended complaint, raising 26 affirmative defenses.
On January 3, 2018, the DOT successfully demurred to plaintiffs’ cause
of action for failure to discharge a mandatory duty. The court overruled the
DOT’s demurrer to the causes of action for a dangerous condition on public
property and vicarious liability for its employees’ negligence.
On February 11, 2020, the DOT moved for summary judgment as to the
remaining two causes of action. The DOT argued as to both causes of action
that (1) it was immune from liability as a public entity (§§ 830.8, 845); (2) the
lawsuit was barred under Privette v. Superior Court (1993) 5 Cal.4th 689(Privette) because the DOT properly delegated workplace safety to
O.C. Jones; and (3) the drunk driver’s criminal conduct that caused
decedent’s death was not reasonably foreseeable.
In support of its motion, the DOT offered a declaration from DOT
inspector Ruzic, who attested that his role at the project site was to ensure
O.C. Jones was complying with the terms of the contract, including its safety
obligations. Ruzic did not instruct or control O.C. Jones as to how to comply
with its safety obligations. Further, on the night in question, Ruzic observed
that O.C. Jones complied with its safety plan by: (1) placing warning signs up
at 7 p.m.; (2) putting the arrow board in place at 8 p.m.; and (3) ensuring all
the tapers set up by the cones were in proper position by around 8 p.m.
Sometime after 8 p.m., an O.C. Jones representative phoned Ruzic to request
a road closure in a new area. Ruzic authorized the change before leaving the
project site for a meal. As such, he was not present when the accident
occurred.
4
The DOT also offered a declaration from DOT construction engineer
Khoury, who supervised the project. Khoury attested that the contract
between the DOT and O.C. Jones was entered into on February 18, 2015, and
delegated to O.C. Jones the responsibility for selecting the means and
methods for performing under the contract work, including those designed to
ensure worker safety. According to Khoury, the DOT did not direct
O.C. Jones (or any of its contractors) regarding the means and methods of
performing the work required under the contract.
Plaintiffs opposed this motion and offered their own evidence.
Plaintiffs argued, inter alia, that triable issues of fact existed as to whether
the DOT retained control over the construction project and whether,
notwithstanding the drunk driver’s conduct, the DOT could be held liable for
its own negligence. In support of these arguments, plaintiffs relied on a part
of the parties’ contract entitled 2010 Standard Specifications, part 5 (Control
of Work), which stated that the DOT’s resident engineer was responsible for
making final decisions on questions regarding the contract, including the
manner of work performance and work quality and acceptability.
Plaintiffs also offered the declaration of Christian Engelmann, a civil
and traffic engineer formerly employed by the DOT (Engelmann declaration).
Engelmann attested as to his expertise and familiarity with highway traffic
safety in general and the DOT’s highway traffic safety policies and
procedures in particular. Based on his professional experience with the DOT
as well as his engineering expertise and review of relevant case materials,
Engelmann opined, inter alia, that the project site constituted a dangerous
condition on the night in question, that decedent’s death was foreseeable
based on said condition, and that the DOT had a duty, which it failed, to
inspect the project site for proper safety measures.
5
On September 4, 2020, the DOT filed objections to 32 statements in the
Engelmann declaration. The grounds asserted included irrelevance, undue
prejudice, speculation, lack of foundation, improper legal conclusion, and
inadmissible hearsay.
On November 9, 2020, following a contested hearing, the trial court
concluded that, under Privette and its progeny, the DOT was not liable for
decedent’s death as a matter of law because the DOT delegated to O.C. Jones
its duty to provide a safe work environment. Additionally, the court found no
liability because the conduct of the drunk driver that killed decedent was not
reasonably foreseeable. Finally, the court sustained 31 of the DOT’s 32
objections to the Engelmann declaration without explanation. Accordingly,
judgment was entered for the DOT. This timely appeal followed.
DISCUSSION
Plaintiffs challenge the grant of summary judgment in DOT’s favor on
the grounds that (1) the trial court’s “blanket ruling” sustaining 31 of 32
evidentiary objections was a manifest abuse of discretion and (2) material
issues of disputed fact exist as to their causes of action for vicarious liability
under section 815.2 and creating a dangerous condition on public property
under section 835. We address each issue in turn after setting forth our
standard of review.
A defendant moving for summary judgment must show “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).) Summary judgment is proper where “all the papers submitted show
that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (Id., subd. (c).)
6
On appeal, “we take the facts from the record that was before the trial
court . . . . ‘ “We review the trial court’s decision de novo, considering all the
evidence set forth in the moving and opposing papers except that to which
objections were [properly] made and sustained.” ’ ” (Yanowitz. v. L’Oreal
USA, Inc. (2005) 36 Cal.4th 1028, 1037, citation omitted.) In doing so, “we
exercise an independent review to determine if the defendant moving for
summary judgment met its burden of establishing a complete defense or of
negating each of the plaintiff[s’] theories and establishing that the action was
without merit.” (Fisherman’s Wharf Bay Cruise Corp. v. Superior Court
(2003) 114 Cal.App.4th 309, 320.) Ultimately, we must affirm summary
judgment “ ‘if it is correct on any of the grounds asserted in the trial court,
regardless of the trial court’s stated reasons.’ ” (Arvizu v. City of Pasadena
(2018) 21 Cal.App.5th 760, 763 (Arvizu).)
I. The court failed to discharge its duty to expressly rule on the
DOT’s individual evidentiary objections.
Below, the DOT raised 32 objections to the 14-page expert declaration
submitted on plaintiffs’ behalf by Christian Engelmann, a civil and traffic
engineer who worked for the DOT from 1999 to 2016. The trial court issued a
blanket ruling sustaining all but one of the 32 objections, without
explanation. On appeal, plaintiffs argue this ruling was a manifest abuse of
discretion. The following principles govern our review.
Generally, we review the trial court’s evidentiary rulings for abuse of
discretion. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 405.)
Under this standard, we reverse an evidentiary ruling only if the appellant
makes a showing that the trial court exercised its discretion in an arbitrary,
capricious or patently absurd manner that resulted in a miscarriage of
justice. (People v. Avitia (2005) 127 Cal.App.4th 185, 193.)
7
This standard, however, assumes that the trial court met its
obligation with respect to ruling on evidentiary objections. “[I]n the
summary judgment setting, . . . a trial court presented with timely
evidentiary objections in proper form must expressly rule on the individual
objections, and if it does not, the objections are deemed waived and the
objected-to evidence included in the record.” (Demps v. San Francisco
Housing Auth. (2007) 149 Cal.App.4th 564, 578 (Demps).) Moreover,
“expressly rul[ing] on the individual objections” (ibid.) does not mean ruling
as the trial court did here, by simply issuing a blanket order sustaining 31 of
32 objections without identifying any particular basis. And this is despite the
fact that, for nearly all of its objections, the DOT offered multiple grounds for
exclusion. Indeed, for 28 of these objections, the DOT offered four or five
separate grounds for exclusion. Yet, given the court’s blanket ruling, we have
no way of knowing whether the court accepted all of these grounds or just
one. As aptly explained by our First Appellate District colleagues under more
egregious circumstances: “It is true that the trial court ‘ruled,’ however
conclusorily, that all objections save one were sustained. This is hardly a
ruling, as it could not provide any meaningful basis for review.” (Nazir v.
United Air Lines, Inc. (2009) 178 Cal.App.4th 243, 255, 257 [trial court
committed a “manifest abuse of discretion” in sustaining all but one of the
defendants’ 764 objections without explanation].)
Under these circumstances, where the trial court failed to discharge its
obligation to expressly rule on the DOT’s individual objections in a manner
that would allow a meaningful basis for our review, we give plaintiffs the
benefit of the situation and consider all the evidence in the record, including
the Engelmann declaration, as though the DOT’s objections were waived.
(Demps, supra, 149 Cal.App.4th at p. 578.)
8
Reviewing the record in this light, we nonetheless conclude for reasons
set forth post that the trial court’s grant of summary judgment was correct.
(Arvizu, supra, 21 Cal.App.5th at p. 763 [summary judgment upheld if correct
on any ground].)
II. Summary judgment was proper under Privette and its progeny.
Plaintiffs’ causes of action arise under the Government Claims Act
(§ 810 et seq.). Specifically, the first remaining cause of action arises under
section 815.2, pursuant to which public entities are liable for injuries caused
by their employees within the scope of their employment “if the act or
omission would, apart from this section, have given rise to a cause of action
against that employee . . . .” (§ 815.2, subd. (a).) Section 815.2,
subdivision (b) then states, “Except as otherwise provided by statute, a public
entity is not liable for an injury resulting from an act or omission of an
employee of the public entity where the employee is immune from liability.”
Plaintiffs’ second remaining cause of action arises under section 835,
which provides: “Except as provided by statute, a public entity is liable for
injury caused by a dangerous condition of its property if the plaintiff
establishes that the property was in a dangerous condition at the time of the
injury, that the injury was proximately caused by the dangerous condition,
that the dangerous condition created a reasonably foreseeable risk of the kind
of injury which was incurred, and that either: [¶] (a) A negligent or wrongful
act or omission of an employee of the public entity within the scope of his
employment created the dangerous condition; or [¶] (b) The public entity had
actual or constructive notice of the dangerous condition under Section 835.2 a
sufficient time prior to the injury to have taken measures to protect against
the dangerous condition.”
9
Relevant to both claims, plaintiffs contend disputed issues of fact exist
as to whether decedent’s death was the result of dangerous conditions at the
project site that the DOT and its employees had notice of yet negligently
failed to prevent or correct. These dangerous conditions included “the
positioning of the [construction] equipment in the shoulder, the widths [sic] of
the shoulder lane, the inadequate lighting, the proximity of the closure to
incoming traffic, and the lack of attenuator vehicles.”
We agree with the trial court that, under Privette, supra, 5 Cal.4th 689,
and its progeny, the DOT cannot be held liable under plaintiffs’ theory
because the DOT expressly delegated jobsite safety to decedent’s employer,
O.C. Jones.
A. Privette and Its Progeny.
Privette, supra, held that when “the injuries resulting from an
independent contractor’s performance of inherently dangerous work are to an
employee of the contractor, and thus subject to workers’ compensation
coverage, the doctrine of peculiar risk affords no basis for the employee to
seek recovery of tort damages from the person who hired the contractor but
did not cause the injuries.” (5 Cal.4th at p. 702.)
Subsequent to Privette, the California Supreme Court decided a case
more on point with ours (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52
Cal.4th 590). There, the court considered whether the rule announced in
Privette applied when a hirer failed to comply with workplace safety
requirements concerning the subject matter of the contract and a worker’s
injury is alleged to have occurred as a consequence of that failure. Holding
that the Privette rule applies in that circumstance, the court held: “By hiring
an independent contractor, the hirer implicitly delegates to the contractor
any tort law duty it owes to the contractor’s employees to ensure the safety of
10
the specific workplace that is the subject of the contract. That implicit
delegation includes any tort law duty the hirer owes to the contractor’s
employees to comply with applicable statutory or regulatory safety
requirements.” (Id. at p. 594.)
There are, of course, exceptions to the Privette rule. Relevant here,
plaintiffs argue this case falls under the exception established in Hooker v.
Department of Transportation (2002) 27 Cal.4th 198 (Hooker) because the
DOT retained control over jobsite safety.
Plaintiffs read Hooker too broadly. Hooker held that “a hirer of an
independent contractor is not liable to an employee of the contractor merely
because the hirer retained control over safety conditions at a worksite”;
rather, “a hirer is liable to an employee of a contractor insofar as a hirer’s
exercise of retained control affirmatively contributed to the employee’s
injuries.” (Hooker, supra, 27 Cal.4th at p. 202 [upholding summary judgment
where, “although plaintiff raised triable issues of material fact as to whether
defendant retained control over safety conditions at the worksite, plaintiff
failed to raise triable issues of material fact as to whether defendant actually
exercised the retained control so as to affirmatively contribute to the
[decedent’s] death” (italics added)].) Thus, the court affirmed summary
judgment for the defendant because “[t]here was, at most, evidence that
Caltrans’s safety personnel were aware of an unsafe practice and failed to
exercise the authority they retained to correct it.” (Id. at p. 215; see Kinney v.
CSB Construction, Inc. (2001) 87 Cal.App.4th 28, 39 [“The mere failure to
exercise a power to compel the subcontractor to adopt safer procedures does
not, without more, violate any duty owed to the plaintiff”].)
Recently, our Supreme Court revisited Hooker’s exception to the
Privette doctrine in Sandoval, supra, 12 Cal.5th 256. In doing so, the court
11
confirmed, “If a contract worker becomes injured after that delegation [of
safety] takes place, we presume that the contractor alone—and not the
hirer—was responsible for any failure to take reasonable precautions.” (Id.
at p. 271.) Thus, “[c]ontract workers must prove that the hirer both retained
control and actually exercised that retained control in such a way as to
affirmatively contribute to the injury.” (Id. at p. 276.) “A hirer ‘actually
exercise[s]’ its retained control over the contracted work when it involves
itself in the contracted work ‘such that the contractor is not entirely free to do
the work in the contractor’s own manner.’ (Rest.3d Torts, [Liability for
Physical and Emotional Harm], § 56, com. c, p. 392; [citations].)” (Ibid.)
Moreover, “the affirmative contribution requirement can be satisfied only if
the hirer in some respect induced—not just failed to prevent—the contractor’s
injury-causing conduct,” or “where the hirer’s exercise of retained control
contributes to the injury independently of the contractor’s contribution (if
any) to the injury.” (Id. at p. 277.)
B. Application of These Principles to the Undisputed
Evidence in the Record.
To begin, it is undisputed that the DOT hired O.C. Jones, decedent’s
employer, to perform work on a jobsite owned by the DOT and that decedent
was killed while working at the site. It is also undisputed that the contract
between the DOT and O.C. Jones includes section 7, which expressly
delegated matters of safety at the project site to O.C. Jones. This section
states in relevant part: “In the performance of this contract, the contractor
shall comply with all applicable Federal, State, and local laws governing
safety, health and sanitation [citation]. The contractor shall provide all
safeguards, safety devices and protective equipment and take any other needed
actions as it determines, or as the SHA contracting officer may determine, to
be reasonably necessary to protect the life and health of employees on the job
12
and the safety of the public and to protect property in connection with the
performance of the work covered by the contract. [¶] . . . [T]he contractor and
any subcontractor shall not permit any employee, in performance of the
contract, to work in surroundings or under conditions which are . . .
hazardous or dangerous to his or her health or safety . . . .” (Italics added.)
“This evidence was sufficient to establish that the Privette presumption
applied and, therefore, shifted the burden to plaintiff[s] to raise a triable
issue of fact.” (Alvarez v. Seaside Transportation Services LLC (2017) 13
Cal.App.5th 635, 644.) To do so, plaintiffs direct us to section 5 of the
contract. This provision states in relevant part that the DOT’s residential
engineer at the project site (here, Hana Khoury) is authorized to make the
final decision on questions regarding the contract, including as to “[w]ork
quality and acceptability” and the “manner of performance of the work.”
We agree with the DOT that this provision does not suffice to raise a
triable issue as to whether the DOT retained control over safety at the project
site and actually exercised this retained control in such a way as to
affirmatively contribute to decedent’s death. (Sandoval, supra, 12 Cal.5th at
p. 276.) Section 5 refers to work quality/acceptability and the manner of
work performance, not project site safety. As to that particular issue,
plaintiffs concede the DOT “did not direct or order the means and methods
used by O.C. Jones to provide worker safety” and “did not have the
responsibility for setting up the barriers, cones or warning signs.” Plaintiffs
further concede the DOT “did not prevent OC Jones from complying with its
obligation to provide a safe work site.”
Notwithstanding their concessions, plaintiffs point to the following
facts in their continued attempt to create a triable issue as to the DOT’s
liability. First, the DOT was “responsible for assessing whether the
13
construction zone was eminently unsafe and to stop the construction work
from proceeding.” Moreover, “while [the DOT] did not have the responsibility
for setting up the barriers, cones or warning signs . . . , it did authorize lane
closures. It could also authorize the use of attenuator vehicles at
construction sites.” Finally, the DOT “expected its employees to be familiar
with its Code of Safe Practices” and required its resident engineer “to file
daily reports on the condition of the [project] site,” which it did not do.
Consistent with these facts, plaintiffs’ expert Engelmann opined that
the project site constituted a dangerous condition on the night of decedent’s
death, that it was foreseeable that an errant vehicle would enter the project
site and injure or kill a worker, and that DOT employees had a duty of care to
consider the safety of O.C. Jones’s employees. According to Engelmann, the
DOT employees assigned to the project site when decedent was killed
“exercised a poor standard of care” by failing (1) “to inspect for proper safety
measures, such as a proper escape route [from errant vehicles], or barrier
vehicle, located such that it provides protection to workers [at the project
site]”; (2) “to fill out or be familiar with form CEM-0606,” i.e., construction
safety checklists utilized by the DOT to ensure compliance with safety rules;
or (3) “to inspect for proper lighting located such that it provides minimum
required illumination [at the project site].” This evidence, viewed in a light
favorable to plaintiffs, does not overcome the barrier to liability effected by
Privette and its progeny. Evidence that the DOT could have authorized a
lane closure or use of an attenuator vehicle, “at most, [proved] that [DOT]
safety personnel were aware of an unsafe practice and failed to exercise the
authority they retained to correct it.” (Hooker, supra, 27 Cal.4th at p. 215.)
Further, evidence that the DOT expected O.C. Jones’s employees to learn and
to follow safety policies is not evidence that the DOT “both retained control
14
and actually exercised that retained control in such a way as to affirmatively
contribute to the injury.” (Sandoval, supra, 12 Cal.5th at p. 276; see id. at p.
281 [“That [the hirer’s] employees may have been trained to provide personal
warnings to everyone in the room, or that [its] managers and experts may
have considered such warnings ‘critical,’ does not establish that [the hirer]
induced [the independent contractor’s] reliance on [the hirer] to provide
them”].) Under these circumstances, where it was undisputed the DOT did
not direct the means or methods of decedent’s work on the day in question or
instruct his employer on how to provide for his or his coworkers’ safety,
summary judgment was appropriate.
Horne v. Aherne Rentals, Inc. (2020) 50 Cal.App.5th 192 is instructive.
There, similar to here, summary judgment was affirmed for the defendant,
who hired the decedent’s employer as an independent contractor, because,
“[a]t most, plaintiffs’ evidence shows defendant passively permitted an unsafe
condition.” (Id. at p. 203.) As the reviewing court explained: “This . . . would
be a different case if [the contractor] or one of its employees had asked
defendant to take safety measures to be sure the forklift was stable, and
defendant promised to do so, but did not follow through. There is no evidence
that defendant ever agreed with [the contractor] to implement any safety
measure related to the position of the forklift (or any other safety measure).
There is no evidence anyone with [the contractor] asked defendant to move
the forklift or lower the boom, but defendant did not do so; or that it was
impossible or impractical to ask defendant to be sure the forklift was safely
positioned to change the tires.” (Ibid.; accord, Brannon v. Lathrop
Construction Associates, Inc. (2012) 206 Cal.App.4th 1170, 1180 [“[The
hirer’s] act of allowing the scaffolding to remain in place while the masonry
work proceeded was no more an exercise of retained control over safety than
15
was Caltrans’s decision in Hooker to allow construction traffic to access the
overpass while the crane was being used”].)
Accordingly, for the reasons stated, we agree with the trial court that
the Privette doctrine serves as an absolute bar to holding the DOT liable for
decedent’s death under section 835 (dangerous condition) or section 815.2
(vicarious liability for its employees’ negligence). In the words of Sandoval,
supra, “a hirer’s mere authority to prevent or correct a contractor’s unsafe
practices (retained control) does not, without more, limit the contractor’s
delegated control over the work.” (12 Cal.5th at p. 278.)3
DISPOSITION
The judgment is affirmed.
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Simons, J.
_________________________
Burns, J.
A161844/Marin v. Department of Transportation
3Given this holding, we need not address plaintiffs’ remaining
argument that the trial court erred in concluding that, as a matter of law, the
DOT cannot be held liable for the criminal conduct of the drunk driver that
killed decedent. As stated, we uphold the trial court’s grant of summary
judgment so long as it is correct on any grounds. (Arvizu, supra, 21
Cal.App.5th at p. 763.)
16
Filed 2/23/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
GABRIELA MARTINEZ MARIN
et al., A161844
Plaintiffs and Appellants,
(Alameda County
v. Super. Ct. No. RG16819984)
DEPARTMENT OF
TRANSPORTATION, ORDER CERTIFYING OPINION
FOR PUBLICATION
Defendant and Respondent.
THE COURT:*
The opinion in the above-entitled matter filed on January 31, 2023, was
not certified for publication in the Official Reports. For good cause it now
appears that the opinion should be published in the Official Reports and it is
so ordered.
Date: , P. J.
* Jackson, P. J.; Simons, J.; Burns, J.
1
A161844/Marin v. Department of Transportation
Trial Court: Superior Court of the County of Alameda
Trial Judge: Paul Herbert
Counsel: Liberation Law Group and Arlo Garcia Uriarte for
plaintiffs and appellants.
Tyson & Mendes, James E. Sell and Molly A. Gilardi, for
defendant and respondent.
2