Metropolitan News-Enterprise


Thursday, January 7, 2021


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Tort Action Restored Against Auto Club for Delay of Truck

Plaintiff Claims His Car Would Not Have Been Struck by Out-of-Control Auto While He Was Stalled on Freeway If Tow Truck Had Arrived Timely; Court of Appeal Reverses Summary Judgment in Defendant’s Favor


By a MetNews Staff Writer


The Court of Appeal for this district, in an opinion certified for publication yesterday, reversed a summary judgment in favor of the Automobile Club of Southern California in an action by a motorist who blames it for injuries he incurred in an accident, arguing that if a truck had arrived promptly to provide roadside assistance after he phoned for help when his car was stalled on the shoulder of a freeway, the mishap would not have occurred.

Presiding Justice Dennis M. Perluss of Div. Seven said the judgment, awarded by Los Angeles Superior Court Judge Laura A. Seigle, is infirm because the Auto Club argued non-liability on the ground that there was a lack of causation on its part, and she ruled on the basis of a lack of duty.

The plaintiff, Brett Luebke, was stuck on the 405 Freeway near the Skirball Center. More than two hours had passed since he phoned the Auto Club when Tong Yin, an unlicensed driver, lost control of his vehicle and crashed into Luebke’s automobile.

In discovery, the Auto Club asked Luebke to admit “that Automobile Club of Southern California did not cause the INCIDENT.” He admitted.

That admission and other responses established nonliability on its part, the Auto Club claimed in seeking summary judgment. Luebke explained that he interpreted “incident” to mean accident, and while Yin was solely responsible for that, the Auto Club was nonetheless liable for subjecting him to peril by failing to show up to provide emergency roadside service, to which he was contractually entitled.

Siegel’s Ruling

Seigle granted summary judgment on Sept. 11, 2019. In the minute order, she noted:

“The parties spend most of their briefs arguing about whether Plaintiffs discovery responses admit Defendants did not cause Plaintiff’s damages and whether Plaintiff can now amend his discovery responses to state Defendants did cause the damage. For the purposes of deciding this motion, the Court assumes (without deciding in any way) that Plaintiff has the ability to amend its discovery responses….”

She went on to say, however, that Luebke “cannot establish Auto Club’s liability as a matter of law.,” explaining:

“Plaintiff did not have any legal authority supporting the argument that a contract creates a special relationship such that the breach of a contract can lead to tort remedies. The law is actually to the contrary….Negligent breach of a contract is not sufficient….

“Plaintiff alleged Auto Club was negligent. Plaintiff did not allege and did not submit any evidence that Auto Club acted intentionally in delaying its response to Plaintiff s call or that Auto Club intended to harm Plaintiff. Absent intentional conduct intended to harm Plaintiff, the alleged contractual relationship between Auto Club and Plaintiff did not give rise to a special relationship or tort remedies under California law.”

Perluss’s Opinion

In an opinion reversing the judgment, initially filed Dec. 17, Perluss said:

“The Auto Club’s motion for summary judgment was based solely on the argument Luebke had admitted it was not the cause of his injuries—an argument the trial court rejected based on its assumption for purposes of deciding the motion that Luebke could his amend his earlier discovery responses. Having rejected the sole ground on which the Auto Club moved for summary judgment, the trial court should have denied the motion.”

He went on to declare:

“The trial court misunderstood the law, as well as its obligations in ruling on a motion for summary judgment. A special relationship may, in fact, arise out of a contractual duty.”

Perluss pointed out that the “negligent undertaking doctrine,” though often invoked where a volunteer “good Samaritan” undertakes to render assistance, has also been held to apply where help is provided by someone who is compensated. In either circumstance, where a person in trouble relies on the assistance, he said, a duty is created on the part of the rescuer not to increase the risk of harm.

Special Relationship

The jurist wrote:

“Whether a special relationship existed between Luebke and the Auto Club and whether the Auto Club had a duty of reasonable care in providing its services depend in substantial part on the terms of the contract between Luebke and the Auto Club, as well as whether there was evidence Luebke reasonably relied on the Auto Club to fulfill its contractual obligations and whether the Auto Club failed to do so in a way that increased Luebke’s risk of harm. Far from being undisputed, none of those material facts was even addressed in the Auto Club’s separate statement. Indeed, as the trial court emphasized, the contract between Luebke and the Auto Club was not in the record. Of course not. The contract had nothing to do with the question of causation identified by the Auto Club’s motion and its separate statement, nor did the reasonableness of Luebke’s reliance on the Auto Club to timely provide roadside assistance.

“By reaching out to decide an issue not addressed in the Auto Club’s moving papers…, the trial court deprived Luebke of his right to oppose summary judgment. Its ruling cannot stand.”

The case is Luebke v. Automobile Club of Southern California, B302782.

Mauro Fiore Jr., Gilbert Perez III and Lisa J. Jackson of the Monrovia Law Offices of Mauro Fiore Jr. represented Luebke. Cheryl A. Kirkpatrick and Peter C.L. Chen of the Irvine firm of Horton, Oberrecht, Kirkpatrick & Martha acted for the Auto Club.


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