ORDER RE: MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATION (Doc. 33)
Defendant United States of America (hereinafter referred to as "Defendant" or "the government") has filed a motion for summary judgment or summary adjudication in the alternative pursuant to Federal Rule of Civil Procedure 56. For reasons discussed below, the motion shall be denied.
II. FACTS AND PROCEDURAL BACKGROUND
On August 1, 2011, plaintiff David Lee Weaver (hereinafter referred to as "Plaintiff" or "Weaver") filed his first amended complaint (FAC) against defendants the government (sued as United States Department of Agriculture, Forest Service), Michael James Ryan and Does 1 through 100, asserting one of cause of action in negligence against all defendants. In the FAC, Plaintiff alleged as follows:
"[O]n or about May 4, 2009 [ ] Defendant, Michael James Ryan, was the operator of a certain 2006 Ford Expedition bearing California license No. A318284. [¶] Defendant, United States Department of Agriculture, Forest Service was the owner of the 2006 Ford Expedition and employed Defendant Michael James Ryan who was within scope and course of said employment when the within acts alleged in Plaintiff's complaint occurred."
Plaintiff further alleged:
"[O]n or about May 4, 2009 Plaintiff was traveling on Highway 99 in Kern County, California, South of Whistler Rd. in a northerly direction, operating his 1993 BMW license No. 4ZGF161. At that time and place, Defendants, and each of them, so negligently and carelessly entrusted, owned, managed, employed[,] maintained, drove and operated their motor vehicle so as to legally cause said motor vehicle to collide with the motor vehicle which contained Plaintiff by making an unsafe lane change and as a result thereof, caused [ ] injuries and damages . . . ."
Plaintiff further alleged:
"On September 26, 2009 a timely governmental claim for damages pursuant to Title 28 U.S.C. Section 2401(b) was presented to the United States Department of Agriculture Forest Service for the injuries and damages suffered by Plaintiff, which was rejected by them on February 22, 2010 and March 22, 2011 and served upon Plaintiff on March 16, 2010 and March 25, 2011 thus making the within action timely against the Defendants in compliance with Title 28 U.S.C. Section 2675."
On November 9, 2012, the government filed its motion for summary judgment or summary adjudication in the alternative pursuant to Federal Rule of Civil Procedure 56, contending there are no genuine issues of material fact and the government is entitled to judgment as a matter of law. Plaintiff did not file a written opposition to the government's motion.
"A party may move for summary judgment, identifying each claim or defense -- or the part of each claim or defense -- on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see Fed. R. Civ. P. 56(c)(1)(A). "Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party's case." In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (2010) (citing Celotex, supra, at p. 325). If the moving party meets its initial burden, the burden shifts to the non-moving party to present evidence establishing the existence of a genuine dispute as to any material fact. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86, 106 S.Ct. 1348, 89 L.Ed.2d 538. A court ruling on a motion for summary judgment must construe all facts and inferences in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Even if the motion is unopposed, the movant is not absolved of the burden to show there are no genuine issues of material fact, Henry v. Gill Industries, Inc., 983 F.2d 943, 949-50 (9th Cir. 1993), although the court may assume the movant's assertions of fact to be undisputed for the purposes of the motion and grant summary judgment if the facts and other supporting materials show the movant is entitled to it. See Fed. R. Civ. P. 56(e)(2), (3).
A. The government's first argument (Plaintiff cannot meet his burden of proof on negligence) -- As against the defendants, Plaintiff has asserted what is essentially a claim for motor vehicle liability sounding in negligence. "The elements of a cause of action for negligence are ' " '(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach [was] the proximate or legal cause of the resulting injury.' " [Citation.]' [Citation.]" Walker v. Sonora Regional Medical Center, 202 Cal.App.4th 948, 958, 135 Cal.Rptr.3d 876 (2012). The government now contends summary judgment must be granted in its favor because Plaintiff cannot adduce evidence to establish one or more of the elements of actionable negligence. Pursuant to this general argument, the government first contends Plaintiff's claim the driver of the government vehicle, defendant ...