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Carrera v. Maurice J. Sopp & Son

September 3, 2009


APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel S. Pratt, Judge. Reversed. (Los Angeles County Super. Ct. Nos. VC045734, VC046927 & VC047428)

The opinion of the court was delivered by: Klein, P. J.


The plaintiffs and appellants in this consolidated action appeal a judgment following a grant of summary judgment in favor of defendant and respondent Maurice J. Sopp & Son, a California corporation (Sopp). Plaintiffs assert causes of action for wrongful death, negligence and loss of consortium against Sopp. The deaths and injuries giving rise to this suit were caused by one Raymond Bermudez, a paroled gang member who stole a tow truck, with key in the ignition, from Sopp‟s open premises.

Absent "special circumstances," the owner or bailee of a motor vehicle has no duty to protect third persons against the possibility a thief will steal the vehicle and injure them with it. (Richards v. Stanley (1954) 43 Cal.2d 60, 65-66 (Richards); Richardson v. Ham (1955) 44 Cal.2d 772, 775-777 (Richardson); Hergenrether v. East (1964) 61 Cal.2d 440, 445-446 (Hergenrether); Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 183-186 (Palma); Ballard v. Uribe (1986) 41 Cal.3d 564, 573 (Ballard); Avis Rent a Car System, Inc. v. Superior Court (1993) 12 Cal.App.4th 221, 225 (Avis); May v. Nine Plus Properties, Inc. (2006) 143 Cal.App.4th 1538, 1541.) "The Supreme Court cases show that 'special circumstances' exist when heavy vehicles are left unattended and available for use by those not accustomed to driving them." (Avis, supra, at p. 228, italics added.)

The essential question presented is whether special circumstances exist in the instant case, so as to give rise to a duty in Sopp.

Here, Bermudez, who was released on parole on the day of the incident, took a bus to Los Angeles, becoming intoxicated en route. Bermudez entered Sopp‟s truck service center yard in Huntington Park, California, through an open gate and stole the commercial tow truck in issue. Bermudez started the tow truck with the key, which had been left in the ignition, and drove the tow truck out of the service center yard. Bermudez struck numerous vehicles parked along the street as he drove from the service center. Approximately a mile from there, Bermudez drove the tow truck through a bus stop crowded with people, killing three and injuring numerous others, finally stopping after hitting two utility poles.

Sopp sought summary judgment on the issues of duty and causation.

The trial court indicated at the hearing on the motion that it had "struggled" with the case but thereafter, in a written order, granted summary judgment on the issue of duty, finding the case fell within the general rule of non-liability in the absence of special circumstances.

On appeal, the plaintiffs contend Sopp was not entitled to the benefit of the general rule of non-liability because special circumstances exist in this case.

We agree and reverse the order granting summary judgment.

We reach this conclusion based on evidence (1) the tow truck stolen from Sopp‟s service center was a powerful vehicle capable of inflicting more serious injury and damage than an ordinary vehicle when not properly controlled and the safe operation of the tow truck was not a matter of common experience; and (2) the tow truck was unattended and accessible to thieves within the meaning of the special circumstances doctrine. The theft occurred at the end of the business day. As the trial court found, Sopp‟s "security measures or shutdown procedures were either not in place or not followed," even though, at the relevant time, Huntington Park had the highest rate of vehicle theft in the nation. The sole Sopp employee in the vicinity of the tow truck was operating loud car wash equipment and was unaware of the theft.

In view of plaintiffs‟ showing with respect to the powerful nature of the instant vehicle and that its safe operation was not a matter of common experience, coupled with the fact the vehicle, with key in the ignition, was left unattended, the trial court erred in finding an absence of special circumstances. On the record presented, Sopp failed to carry its burden on summary judgment to show it owed no duty to secure the vehicle by undertaking minimally burdensome measures such as removing the key from the ignition and/or closing the gate to the premises. (See Hergenrether, supra, 61 Cal.2d at p. 445; Palma, supra, 36 Cal.3d at p. 185.)

We also reject Sopp‟s claim that, as a matter of law, the plaintiffs cannot demonstrate causation. Where the risk to be foreseen is criminal conduct by a third party, such criminal conduct cannot cut off the defendant‟s liability as a matter of law. (Richardson, supra, 44 Cal.2d at p. 776.) Further, the injuries caused by Bermudez occurred shortly after the theft of the tow truck and were not so temporally disparate as to suggest a termination of causation. (Cf. Avis, supra, 12 Cal.App.4th 221 [injury occurred one week after theft]; May v. Nine Plus Properties, Inc., supra, 143 Cal.App.4th 1538 [injury occurred two days after theft].)

In sum, we conclude Sopp owed a duty of care, as a matter of law. Whether Sopp breached its duty, as well as the issue of causation, are matters that must be determined by the trier of fact.


1. The Pleadings

a. The Complaints

The plaintiffs‟ complaints alleged Sopp owned and operated a commercial vehicle repair facility on 58th Street in the City of Huntington Park, California, as part of a larger commercial vehicle sales and maintenance complex, located in an area with a high transient population, numerous bars, graffiti indicative of gang activity and a very high incidence of crime, including thefts and burglaries. The vehicles repaired at the facility include commercial tow trucks, moving trucks and vans, commercial cargo trucks and other similar large motor vehicles which require specialized knowledge and training for their operation. "The commercial vehicles in the central storage area were stored with the keys in the ignition so as to allow easy movement of the vehicles . . . as necessary for repairs and service."

On October 6, 2005, Sopp "received a 2003 Nissan tow truck in the subject repair facility for servicing and/or repair. The tow truck was a large commercial vehicle . . . . Because of its size, heavy weight and the complex nature of its controls, it was capable of inflicting serious injury or damage if operated in the roadway and not properly controlled." "Defendants placed the tow truck in the subject facility‟s central storage area and the keys to the tow truck were left in the ignition and the vehicle was not locked or otherwise secured so as to prevent its theft." The service center has gated entrances on its eastern and northern sides. The eastern gates face an alley that abuts a major intersection which is heavily traveled by pedestrians.

Bermudez entered the open facility through the east alley entrance, started the tow truck with the key and drove the truck out the eastern gate. The complaints alleged the "tow truck was parked in a position that permitted [Bermudez] to easily leave the facility." Bermudez "proceeded to the intersection of Vernon Avenue and Santa Fe Avenue in the City of Vernon, striking other motorists‟ vehicles as he drove. Because of the large size of the vehicle and [the] complex nature of the controls on the tow truck, [Bermudez] struggled to operate the vehicle." Bermudez drove onto the sidewalk at the intersection and collided with numerous people waiting to board a bus, causing the deaths and injuries which gave rise to this litigation.

The complaints alleged Sopp negligently operated the truck service center so as to allow a thief access to the tow truck and, because of the special circumstances that existed in the service center repair yard on the date of this incident, Sopp had a duty to take reasonable measures to prevent the theft. However, Sopp failed in this regard and, as a proximate result of this failure, the plaintiffs were injured or their decedents were killed.

b. Sopp's Answers

Sopp‟s answers, as relevant, asserted the plaintiffs failed to state facts sufficient to constitute a cause of action and the injuries and damages claimed by the plaintiffs were caused by the negligence or other actionable conduct of third parties for whom Sopp was not responsible.

2. Proceedings Related to the Motion for Summary Judgment

a. Sopp's Motion for Summary Judgment

Sopp filed a motion for summary judgment which alleged the plaintiffs could not establish the elements of duty or causation. In support of the motion, Sopp offered declarations of Sopp employees which indicated the truck service center operates from 8:00 a.m. until 5:00 p.m. daily. Vehicles for service are parked throughout the service center. Vehicle porters close all the lots owned by Sopp, including the service center, as part of the shut down routine. The porters move all vehicles from the street, "stack park" the vehicles to fit inside the premises, remove the keys from the vehicles and lock them in the office.

In a declaration in support of the motion, Roy Jones, Sopp‟s Get Ready Manager, detailed the activity depicted in a video captured by three of Sopp‟s surveillance cameras. The video shows that, after the porters closed and locked the eastern gates to the service center, Jones unlocked the eastern gate at 5:12 p.m., then drove his personal vehicle into the service center and parked it next to a car wash bay. Jones left the gate open and, while Jones washed his vehicle, Bermudez walked into the service center yard through the open gate at 5:15 p.m.

The video shows Bermudez immediately entered the driver‟s seat of a service truck parked near the gate. Bermudez then alighted from the service truck and reached under the seat, presumably looking for the key. Bermudez then walked to the tow truck, which was parked in a second row of vehicles. The tow truck moved almost immediately after Bermudez enters it. Twice the tow truck backed into a Chevy Silverado pickup truck parked behind it. The tow truck then went forward, around a stake bed truck and out the open gate. As the tow truck moved forward, it knocked down and dragged a large shade canopy with it.*fn1 The entire incident took approximately three minutes. Bermudez started the tow truck one minute and four seconds after he entered the yard.

Bermudez drove the tow truck past two service center employees standing on 58th Street near the north gate. The tow truck struck parked vehicles as it went down 58th Street and struck a vehicle being operated by a Sopp employee on 58th Street. Approximately one mile from the service center, Bermudez drove the tow truck through a group of pedestrians at a bus stop at the corner of Santa Fe and Vernon Avenues in the City of Vernon. The tow truck then sheared off a utility pole and finally stopped when it struck a second utility pole.

Bermudez pled guilty to three counts of murder and was sentenced to 140 years to life in state prison.

Jones declared that, in his 31 years as a Sopp employee, no vehicles had ever been stolen from the service center. Although a tilt cab truck was stolen in 1993 from a nearby lot owned by Sopp, that theft occurred at night after Sopp employees had left for the day.

Sopp‟s motion asserted it owed the plaintiffs no duty because two Chevy Silverado pickup trucks had been "stack parked" behind the tow truck, a 20-foot stake bed truck was parked to the side of the tow truck and the tow truck was stolen from a fenced and gated yard during daylight hours while Sopp‟s employees remained on the premises. Further, Bermudez was able to drive the tow truck from the service center only "by repeatedly smashing the vehicles on either side of [the tow truck] and driving through the canopy and out the gate into the street."

Sopp also asserted the tow truck did not constitute heavy equipment and noted its employees had stated, at deposition or in a declaration, the tow truck drove no ...

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