(Super. Ct. No. 34200800010772CUPCGDS)
The opinion of the court was delivered by: Hull , Acting P.J.
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Motorist Raymond Ujimori found himself named as a defendant in a personal injury lawsuit because he yielded the right-of-way to another motorist, Donna Garcia (who is not party to this appeal), who collided with a motorcycle ridden by plaintiff Larry A. Simington. Simington and his wife, Carol J. Simington, sued defendant for negligence, negligent misrepresentation, and loss of consortium, on a theory that defendant undertook to direct traffic and failed to exercise reasonable care in doing so. The trial court entered summary judgment in favor of defendant, based on case law that holds that a motorist who yields the right-of-way to another motorist does not thereby assume liability to third parties for the other motorist's negligence. Plaintiffs appeal, arguing a triable issue exists as to whether defendant, by his affirmative acts of waving to Garcia to precede him, assumed a duty of reasonable care to protect other motorists such as Mr. Simington. We affirm the judgment.
On review of an order granting summary judgment, we construe the evidence in the light most favorable to the opposing party. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)
On October 31, 2006, around 6:45 p.m., Garcia's car was stopped at a stop sign on northbound Tamarindo Bay Drive, waiting to make a left-hand turn onto westbound Gerber Road. Defendant's vehicle was stopped westbound on Gerber Road, in the center bi-directional turn lane, waiting to make a left turn onto Tamarindo Bay Drive. Garcia's view of eastbound traffic on Gerber Road was obstructed by cars backed up in the number two eastbound lane (the second lane from the center of the road), apparently positioned to make a right hand turn up ahead. Defendant had a clear view of eastbound traffic on Gerber Road.
Defendant, facing forward in his car, signaled with his right hand for Garcia to make her turn before he made his turn. He did not exit his vehicle or honk his horn. He waved twice when Garcia was stopped at the stop sign, and then waved a third time when she was in the intersection, in the number two eastbound lane. Garcia understood, and relied on, defendant's waves as signals that it was all clear to proceed. She proceeded and was hit by plaintiff, who was riding his motorcycle eastbound on Gerber Road, in the number one lane (closest to the center of the road).
On May 12, 2008, plaintiffs filed a complaint alleging negligence, negligent misrepresentation, and loss of consortium, on the theory that defendant undertook to direct traffic, represented that it was safe for Garcia to proceed through the intersection, and failed to exercise reasonable care in directing traffic. Defendant cross-complained against Garcia, who later settled out of the case for $50,000.
Defendant moved for judgment on the pleadings, citing Gilmer v. Ellington (2008) 159 Cal.App.4th 190 (Gilmer), as holding that a motorist who yields his right-of-way does not thereby assume a duty of care to protect others from the motorist to whom the right-of-way is yielded. The trial court denied the motion on the ground the complaint was unclear about the facts.
Defendant moved for summary judgment. On October 5, 2009, the trial court issued its order granting summary judgment stating in part: "Plaintiff frames the issue to be determined as: 'In all instances, does a driver in a better position to foresee danger who yields the [right-of-way] to a driver with an obstructed view have no duty of reasonable care, regardless of whether his actions could be reasonably interpreted by other drivers as directing traffic and/or a representation of fact that it was safe to proceed?' [¶] In the State of California, the answer is yes. Here, the parties essentially dispute the interpretation of the hand gestures. Even favoring the plaintiff's interpretation, which is that defendant's gestures meant 'it is safe to proceed' rather than merely 'you can go first,' there is no duty on the part of defendant to the plaintiff under the Gilmer case." (Italics omitted.)
Plaintiffs appeal from the ensuing ...