Judge Carolyn M. Caietti, Case 37-2021-00002319-CU-PO-CTL 2023-11-02 Tentative Ruling

Judge: Carolyn M. Caietti, Case: 37-2021-00002319-CU-PO-CTL, Date: 2023-11-02 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - October 05, 2023

10/06/2023 10:30:00 AM C-70 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Carolyn Caietti

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00002319-CU-PO-CTL HE VS METROPOLITAN TRANSIT SYSTEM [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 04/21/2023

Defendant Mid-Coast Transit Constructors' Motion for Summary Judgment or in the Alternative Summary Adjudication is OFF CALENDAR.

Defendant San Diego Association of Governments' Motion for Summary Judgment is DENIED. The alternate Motion for Summary Adjudication is GRANTED IN PART AND DENIED IN PART.

Mid-Coast Transit Constructors' Motion On September 21, 2023, Plaintiffs filed a response to this motion, indicating they filed a request for dismissal as to MCTC and are not required to file an opposition. The Court entered the dismissal on September 20, 2023. (ROA 539.) Thus, MCTC is dismissed from this action and its motion is OFF CALENDAR.

San Diego Association of Governments (SANDAG)'s Motion Background Plaintiffs' Complaint asserts two causes of action against SANDAG: (i) dangerous condition of public property; and (ii) negligence. Generally, Plaintiffs allege on February 18, 2020, Wentian Zheng and his wife Shuxia He returned home on a trolley. After disembarking the trolley at the Washington Street Station, Mr. Zheng was struck and killed by a Pacific Surfliner Amtrak train. At the time, the location had numerous dangerous conditions, creating a risk of serious bodily injury and/or death to pedestrians and Defendants failed to adequately warn pedestrians of the serious danger and/or take other necessary safety measures.

With regard to the dangerous condition cause of action, SANDAG moves for summary judgment or adjudication on grounds SANDAG had no ownership or control of the location where the incident occurred. With regard to Plaintiffs' negligence cause of action, SANDAG asserts it fails because it is premised on the dangerous condition theory; and Plaintiffs cannot establish any statute giving rise to liability for an act or omission by a SANDAG employee.

Preliminary Matters SANDAG's reply request for judicial notice is granted and notice will only be taken to the extent permitted. Plaintiff's objections to this request are overruled.

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2980689 36 CASE NUMBER: CASE TITLE: HE VS METROPOLITAN TRANSIT SYSTEM [IMAGED] 37-2021-00002319-CU-PO-CTL SANDAG's reply objections are overruled.

Discussion In ruling on a summary judgment, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts.

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Dangerous Condition of Public Property Cause of Action Government Code section 835 provides the basis for liability in an action against a public entity for an injury caused by the dangerous condition of public property. The property must be owned or controlled by a public entity. Government Code section 830(c) defines public property. As relevant here, control may be established by whether the defendant had 'the power to prevent, remedy or guard against the dangerous condition.' (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 990.) Disputed facts regarding control exist. Plaintiff presented evidence SANDAG conducted construction activities at the Washington Street Station prior to and after the incident and SANDAG, MTS and NCTD did not approve of the work until after the incident. SANDAG also admitted to controlling an area during construction activities and owing a maintenance obligation prior to transfer to MTS or NCTD. Acceptance and approval did not occur until April 2021. There is also evidence the work conducted by SANDAG via its contractor MCTC resulted in the removal of a sidewalk sign that read, 'Watch for Moving Trains' [emphasis omitted]. Further, SANDAG had ultimate authority to ensure the quality of the work, approve of the work and remedy design errors and construction defects. These facts create a dispute on whether SANDAG had the power to prevent, remedy or guard against a dangerous condition.

The evidence creating this dispute includes: Addendum 17 [describing 'New Light Rail Transit service on and along existing Coastal Rail corridor from Santa Fe Depot to Gilman Drive...']; Addendum 18, p. 10, § E(8) ['Project Lead shall coordinate the Project Contractor's work to assure efficiency, quality and timely installation of projects in accordance with the Construction Documents for each contract...'] & § E(21) & Ex. A-3 ['The Mid-Coast Corridor Transit Project will extend light rail services from the Santa Fe Depot in Downtown San Diego to the University City community, serving major activity centers such as Old Town...']; the deposition of Joshua Grimm, at p. 19:8-20:19, 22:7-23:2; 26:5-1528:2-14; 34:9-17; 35:17-25; 37:1-39:22 & Ex. 4; and the deposition of Sharon Humphreys, at p. 28:23-29;16; 30:10-16 ['The Washington [] Street improvements specifically related to the Mid-Coast project, yes.']; 35:2-5 ['Q.

Okay. SANDAG remains responsible for ultimately quality assurance and management of the project, correct? A. Ultimately, yes.']; 37:8-38:8 [ 'Q. So before the maintenance obligation is seeded back to MTS or to NCTD, it falls on SANDAG and its contractor, correct? ... A. So while we are, you know, working in a particular area...we control it. But once we are out of the area, it goes back to the control of the operator.']; 44:14-16 [Q. And SANDAG is the project lead for the Mid-Coast Corridor project, correct? A. That is correct.']. (Declaration of C.N. Coby Cohen.) In addition, SANDAG has not met its burden that immunity under Government Code section 818.6 applies. This section states, 'A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property (as defined in subdivision (c) of Section 830), for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.' Calendar No.: Event ID: TENTATIVE RULINGS

2980689 36 CASE NUMBER: CASE TITLE: HE VS METROPOLITAN TRANSIT SYSTEM [IMAGED] 37-2021-00002319-CU-PO-CTL First, this position contradicts SANDAG's argument it does not own or control the property. Second, there is no evidence or analysis SANDAG inspected the property 'for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.' Rather, as Plaintiff suggests, facts show any inspection was for the purpose of evaluating its compliance with its agreements under the MMOU and Addenda 17 and 18.

Further, discovery is at issue. 'If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion...' (C.C.P., § 437c(h).) Here, it appears from Plaintiffs' counsel's opposing declaration that facts essential to justify opposition may exist but cannot be presented. On May 22, 2023, the Court granted Plaintiff's motions to compel further responses from SANDAG and awarded sanctions to Plaintiffs. (Cohen Decl., at Ex. 13 – Minute Order dated May 22, 2023.) The parties are still in dispute over the completeness of SANDAG's amended responses. (Cohen Decl., at Ex. 10.) It was not until the eve of a deposition of MCTC's declarant that SANDAG informally produced Addendums 17 and 18. (Cohen Decl., at 11-12.) This also warrants denial of the motion.

Thus, the Court is precluded from summarily adjudicating the first cause of action.

Plaintiffs' Negligence Cause of Action SANDAG first argues Plaintiffs' negligence claim fails because it is based on their dangerous condition theory. For the reasons discussed above, disputed facts exist as to Plaintiffs' dangerous condition of public property cause of action. Thus, summary judgment/adjudication is inappropriate on this ground.

However, SANDAG also maintains Government Code section 815.2 does not apply to a dangerous condition claim. Plaintiff concedes if 'the Court finds SANDAG controlled the relevant area, SANDAG cannot also be liable for the negligence of its contractor for removal of the sign or of its employees for providing plans and approving the work following such removal.' (Opp., at p. 16:23-17:6.) Plaintiffs do not provide any other evidence or case law showing how their negligence cause of action remains in dispute in light of the dangerous condition of public property cause of action. Thus, summary adjudication on the negligence cause of action is appropriate.

Concluding Orders For these reasons, the motion for summary judgment is DENIED. The alternate motion for summary adjudication is GRANTED IN PART AND DENIED IN PART.

SANDAG is ordered to prepare and submit a dismissal of the negligence cause of action.

If the tentative ruling is confirmed without modification, the minute order will be the Court's final order.

SANDAG is ordered to serve written notice of the Court's final order on all parties, by October 10, 2023, unless all parties submit to the tentative ruling or waive notice at the hearing.

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