Judge: Anne Hwang, Case: 21STCV46359, Date: 2024-04-24 Tentative Ruling

Case Number: 21STCV46359    Hearing Date: April 24, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.     Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities; Request for Sanctions

2.     Separate Statement of Undisputed Material Facts

3.     Declaration of Carina M. Jordan and Exhibits in Support

4.     Declaration of Rachael Millsap in Support

OPPOSITION PAPERS

1.     Plaintiff’s Notice of Non-Opposition.

REPLY PAPERS

1.     None.

BACKGROUND

On December 20, 2021, Plaintiffs Vanessa Elizabeth Gonzalez and Chris Reyes (“Plaintiffs”) filed a complaint against Filiberto Flores Torres, City of Lynwood, County of Los Angeles, Southern California Edison Company, and Does 1 to 100 for negligence, premises liability/dangerous condition, and loss of consortium. Plaintiffs allege that on February 19, 2021, they were driving together in a motor vehicle when they collided with another vehicle in the intersection of Martin Luther King Jr. Boulevard and Alameda Street. (Complaint ¶ 11–13.) Plaintiffs allege they were married when the accident took place. (Id. ¶ 31.) The complaint also alleges a dangerous condition existed at the subject intersection. (Id. ¶ 22.)

Against Moving Defendant County of Los Angeles (“Defendant”), Plaintiffs assert their second cause of action for premises liability/dangerous condition and the third cause of action for loss of consortium.

Defendant now moves for summary judgment arguing it did not own or control the subject intersection where the alleged dangerous condition existed. Defendant also seeks monetary sanctions under Code of Civil Procedure section 1038. Plaintiffs filed notices of non-opposition to this motion.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”  (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)  As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)             

DISCUSSION

A.    Dangerous Condition of Public Property

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)

Government Code section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.) A dangerous condition is “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”  (Gov. Code § 830(a).) 

To establish a claim of dangerous condition on public property, a plaintiff must prove: (1) that the defendant owned or controlled the property; (2) that the property was in a dangerous condition at the time of the injury; (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred; (4) that defendant had notice of the dangerous condition for a long enough time to have protected against it; (5) that plaintiff was harmed; and (6) that the dangerous condition was a substantial factor in causing plaintiff’s harm.  (Gov. Code, § 835; CACI No. 1100.)  Consequently, a public entity is only liable for a dangerous condition of property if it either creates the condition or has actual or constructive notice of the condition.  (Gov Code §835(b).)

Here, Defendant argues it did not own or control the subject intersection where the alleged dangerous condition existed. Defendant offers the following facts:

-        Plaintiffs allege that the subject property, (“traffic signals”) at said intersection including that for Eastbound traffic on Martin Luther King Jr. Boulevard, failed to light the red signal when cross-traffic had a green signal, and that it further failed to flash or otherwise indicate that it was inoperable, which created the alleged dangerous condition in the City of Lynwood. (UMF 2.)

-        Rachael Millsap is employed by the County of Los Angeles Department of Public Works as Investigator I in the Claims & Litigation Section of Survey/Mapping & Property Management Division. (UMF 5.)

-        As part of her job duties, Investigator Rachael Millsap maintains familiarity with the streets and highways under the control of the County of Los Angeles and with all departmental records relating to the maintenance of such streets and highways. (UMF 6.)

-        Investigator Rachael Millsap reviewed the records of the County and determined that the County of Los Angeles neither maintains nor had the responsibility to maintain the subject property, or roadway intersection on or about the date of incident, February 19, 2021. (UMF 7.)

-        The County of Los Angeles did not have any responsibility to maintain the traffic signals or roadway intersection on or about February 19, 2021, or for the five years prior to the alleged incident. (UMF 8.)

-        The County of Los Angeles did not have any responsibility to maintain the subject property or roadway intersection during the time period of February 19, 2021, to the present. (UMF 9.)

Defendant provides the signed declaration of Rachael Millsap, an investigator in the Claims and Litigation Section of Survey/ Mapping and Property Management and employed by Defendant. She declares under penalty of perjury that after viewing Defendant’s records, Defendant did not maintain and had no responsibility to maintain the “subject property or roadway intersection.” This declaration does not expressly state that the County did not own the property, or specifically reference the traffic signals. However, in light of the Plaintiff’s non-opposition to this motion, and the lack of an opposition by the City of Lynwood, the Court finds there are no triable issues of material fact regarding the second cause of action for dangerous condition.

B. Loss of Consortium

A loss of consortium cause of action requires a “tortious injury to the plaintiff’s spouse.” (Vanhooser v. Superior Court¿(2012) 206 Cal.App.4th 921, 927.)  Although a loss of consortium claim is an independent tort that “does not rise or fall with the procedural fate of the injured party’s personal injury claim,” (Leonard v. John Crane, Inc. (2012) 206 Cal.App.4th 1274, 1280), here the granting of summary judgment as to Plaintiffs’ dangerous condition claim is not on procedural grounds, but rather because there are no triable issues of fact.  Accordingly, the motion for summary judgment granted.  

C. Request for Sanctions under Section 1038

Defendant requests sanctions under Code of Civil Procedure section 1038, arguing that this action was not brought and litigated by Plaintiffs in good faith.  Section 1038 states in relevant part:

 “[i]n any civil proceeding under the Government Claims Act (Division 3.6 (commencing with Section 810) of Title 1 of the Government Code) . . . the court, upon motion of the defendant or cross-defendant, shall, at the time of the granting of any summary judgment . . . determine whether or not the plaintiff, petitioner, cross-complainant, or intervenor brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint, petition, cross-complaint, or complaint or answer in intervention. If the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party. An award of defense costs under this section shall not be made except on notice contained in a party's papers and an opportunity to be heard.”

(Code Civ. Proc. § 1038(a).)

“Section 1038 requires that before a civil action is filed or maintained, two conditions are to be met. The first condition is that the action be brought in “good faith.” The term “good faith” defies precise definition. [Citation.] ‘[It] is a question of fact in each case.’ [Citation.] Encompassed within the legal definition of ‘good faith’ is the equitable principle of fairness. [Citation.]” (Carroll v. State of California (1990) 217 Cal.App.3d 134, 141.)

The court in Carroll continued:

“The second condition is that the action be brought ‘with reasonable cause.’ We believe the terms “reasonable cause” and “probable cause” to be synonymous. [Citation.] ‘Reasonable cause’ is defined as, ‘... whether any reasonable attorney would have thought the claim tenable....’ [Citaion.]”

(Carroll, supra, 217 Cal.App.3d at 141.)

The issue of reasonable cause, or probable cause, must be decided by the trial court using an objective standard, and not whether the attorney subjectively believed the claim had merit. (Carroll, supra, 217 Cal.App.3d at 142.) “At the minimum, [probable cause] requires that the Plaintiffs' attorney have some articulable fact or facts to conclude that a particular person or entity should be initially included in the lawsuit as a party-defendant.” (Id.)

Section 1038 equally applies to actions that are continued after they are commenced, if done without good faith and reasonable cause. (Suarez v. City of Corona (2014) 229 Cal.App.4th 325, 332.)

Here, as an initial matter, section 1038 applies since this action was brought under the Government Claims Act (Gov. Code § 835) and Defendant was granted summary judgment.

Defendant sets forth the following facts. On February 12, 2022, it sent the first iteration of Rachael Millsap’s declaration, stating that the intersection was not within Defendant’s jurisdiction, to Plaintiffs. (Jordan Decl. ¶ 3, Exh. B.) Presumably in response to this declaration, on April 12, 2022, Plaintiffs filed a request for dismissal without prejudice for Defendant, which was entered on April 27, 2022. (Id. ¶ 4.) However, after receiving information from co-defendant City of Lynwood’s attorney that one of the two signals on the intersection was controlled by Defendant, Plaintiffs filed an amendment to the complaint, substituting Defendant as Doe 1. (Id. ¶ 6, Exh. E.) The amendment was filed on February 17, 2023.

On March 30, 2023, Defendant sent Plaintiffs an amended declaration from Rachael Millsap, specifying that Defendant did not maintain any of the signals on the intersection. (Id. ¶ 7, Exh. F.) Plaintiffs did not dismiss Defendant, thus necessitating this motion.

Although Plaintiffs do not oppose this motion, the Court cannot find that Plaintiffs maintained this action without reasonable cause based on the facts presented by Defendant. Defendant was dismissed after presented with evidence. It apparently was only after another Defendant appeared to disclaim liability that the County was brought back into the case. The second declaration of Rachel Millsap is ambiguous and incomplete. Therefore, the request for sanctions under section 1038 is denied.

CONCLUSION AND ORDER

            Based on the foregoing, Defendant County of Los Angeles’ Motion for Summary Judgment is GRANTED. Defendant shall file and serve a proposed judgment within 10 days.

            Defendant shall provide notice of this ruling and file a proof of service of such.