Ortiz v. Morley Construction Co. CA2/5
B333254
Cal. Ct. App.Aug 4, 2025Background
- David Ortiz, as a pedestrian, was seriously injured when struck by a vehicle at the intersection of Argyle Avenue and Hollywood Boulevard in Los Angeles, near a large construction site where defendants were involved.
- Ortiz and his co-plaintiff (Yuko Ortiz) alleged the defendants (construction companies and related entities) created dangerous conditions by erecting oversized barriers/fences, creating visual obstructions (blind spots) near the crosswalk.
- Defendants moved for summary judgment, arguing there was no evidence they created a breach of duty since the barriers were low (3-5 feet) and did not obstruct the crosswalk or cause the accident.
- Plaintiffs, self-represented, submitted numerous opposition documents, many late and without a required responsive separate statement; much of their evidence, including contradictory statements about barrier height and unauthenticated photos, was excluded for lack of foundation or as inconsistent with deposition testimony.
- The trial court granted summary judgment for defendants, both on substantive grounds (no breach of duty) and procedural grounds (failure to comply with separate statement requirement).
- Plaintiffs appealed, citing various issues, but the appeal focused on the summary judgment as to these defendants only.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the construction barriers/fencing create a dangerous blind spot causing the accident? | The barriers were too high (over 6 feet per declaration) and extended into the crosswalk, creating a blind spot for pedestrians. | Barriers were low-profile (3-5 feet), placed 20-30 feet from the crosswalk, did not obstruct pedestrian or traffic views, and complied with safety standards. | No triable issue existed; barriers did not cause a blind spot or breach duty. |
| Was there a disputed issue of material fact precluding summary judgment? | Conflicting evidence about location and height of barriers and location of impact. | Facts about barrier height and placement undisputed in admissible evidence (deposition and expert testimony); contradictory post-deposition statements inadmissible. | No triable material issue; defendants met initial burden; plaintiffs failed to present admissible evidence. |
| Did procedural failures (absence of separate statement, late filings) justify granting summary judgment? | Self-represented status and injuries excused compliance; substantive evidence should be considered. | Technical requirements not met; filings were late or improper; lack of responsive separate statement as required by Code Civ. Proc. 437c(b)(3). | Granting summary judgment for procedural failure was within court's discretion. |
| Should self-represented litigants receive special procedural leniency? | Argued for leniency due to pro per status and access needs. | Pro per litigants subject to same rules as attorneys. | No special leniency required; due process was met. |
Key Cases Cited
- D’Amico v. Board of Medical Examiners, 11 Cal.3d 1 (Cal. 1974) (a party cannot create a triable issue by contradicting their prior deposition testimony)
- Shin v. Ahn, 42 Cal.4th 482 (Cal. 2007) (disregarding contradictory self-serving declarations in summary judgment)
- Jameson v. Desta, 5 Cal.5th 594 (Cal. 2018) (appellate presumption of trial court correctness; burden on appellant)
- Whitehead v. Habig, 163 Cal.App.4th 896 (Cal. Ct. App. 2008) (court’s discretion to grant summary judgment for failure to file a separate statement)