Judge: Carolyn M. Caietti, Case: 37-2021-00002319-CU-PO-CTL, Date: 2024-06-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 23, 2024

05/24/2024  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, 06/02/2023

Defendant Metropolitan Transit System's Motion for Summary Judgment is GRANTED.

Defendant North County Transit District's Motion for Summary Judgment is GRANTED.

Defendant San Diego Association of Government's Motion for Summary Judgment is GRANTED.

Background As against these moving defendants, Plaintiffs' Complaint asserts causes of action for: (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.

Preliminary Matters In some of the separate statements, there are objections lodged in the separate statements which will not be considered by the Court. (Cal. Rules of Ct., rule 3.1354(b) [all written objections must be served and filed separately from other papers in support of or in opposition to the motion].) The Court has not considered Plaintiffs' Declaration of Shizhong Chen and the evidence submitted therein, filed on the date of Defendants' reply deadline as it is late. (ROA 698; (C.C.P., § 437c(b)(2).) Plaintiffs' oppositions do not include any admissible evidence.

Standards 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 Calendar No.: Event ID:  TENTATIVE RULINGS

3059788  38 CASE NUMBER: CASE TITLE:  HE VS METROPOLITAN TRANSIT SYSTEM [IMAGED]  37-2021-00002319-CU-PO-CTL 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.) 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.

No Opposition by Shuxia He, Lihong Zheng and Lihua Zheng Plaintiff Lillian Zheng filed the opposition papers '(Temporarily) On Behalf of Plaintiffs...' Ms. Zheng is not an attorney. As the Court explained to Ms. Zheng at the ex parte hearing on May 14, 2024, she may only represent herself in this matter and not the other plaintiffs. (ROA 690; see also, Bus. & Prof. Code, § 6125 ['No person shall practice law in California unless the person is an active licensee of the State Bar.']; Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 127 ['although persons may represent themselves and their own interests regardless of State Bar membership, no one but an active member of the State Bar may practice law for another person in California.'].) There was an agreement she could 'give and provide notice' to the other plaintiffs; but she cannot file legal papers on their behalf as it amounts to the unauthorized practice of law.

Accordingly, and technically, Plaintiffs Shuxia He, individually and as successor in interest of the Estate of Wentian Zheng, Lihong Zheng and Lihua Zheng have not: (i) filed an opposition to these motions; (ii) disputed any of the evidence; (iii) produced any evidence; (iv) filed separate statements; nor (v) argued the moving defendants are not entitled to judgment as a matter of law. Despite these failures, a party moving for summary judgment always has the initial burden of making a prima facie showing that there is no triable issue of material fact. (C.C.P., § 437c(p).) This burden is not affected by the sufficiency of any opposition to the motion. (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) Here, and as discussed below, the moving-defendants met their initial burden.

Thus, the motions are all granted as to Plaintiffs Shuxia He, Lihong Zheng and Lihua Zheng.

MTS' Motion MTS's objections to the late Declaration of Shizhong Chen are sustained. (ROA 709.) The first and second causes of action are barred as a matter of law based on the design immunity defense stated in Government Code section 830.6. (ROA 32 – Answer, at Affirmative Defense No. 21.) To establish design immunity – by which a public entity is generally not liable for injuries caused by a dangerous condition of public property – the defendant must prove: (i) a causal relationship between the plan or design and the accident; (ii) discretionary approval of the plan or design prior to construction; and (iii) substantial evidence supporting the reasonableness of the plan or design. (Cornette v. Dept. of Transportation (2001) 26 Cal.4th 63, 66.) The reasonableness of the approval process is an issue decided by the court, not the trier of fact. (Cornette, at p. 66.) Section 830.6's immunity may be lost if the party opposing its application can establish 'changed physical conditions' of the plan or design produced the dangerous condition at issue. (Id., at p. 67, 74, fn. 3.) Here, MTS proffers 35 material facts in support of these issues. Plaintiff claims to dispute three of them, Nos. 5, 6, 7, but does not materially dispute the crux of each fact stated. 'The opposing party's responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists.' (Beltran v. Hard Rock Hotel Licensing, Inc. (2023) 97 Cal.App.5th 865, 875 rev. filed (Jan. 16, 2024).) The first element of the design immunity defense is satisfied as Plaintiffs allege the Mr. Zheng's death Calendar No.: Event ID:  TENTATIVE RULINGS

3059788  38 CASE NUMBER: CASE TITLE:  HE VS METROPOLITAN TRANSIT SYSTEM [IMAGED]  37-2021-00002319-CU-PO-CTL was a 'direct, legal and substantial result' of Defendant's acts, omissions, and negligence relating to the discretionary decisions in the design of the crossing.' (Complaint, at ¶¶ 49, 64; Fuller v. Dept. of Transportation (2001) 89 Cal.App.4th 1109, 1114 (a defendant may rely on the allegations of the complaint to establish causation for the purpose of establishing a design immunity defense).) This is uncontested by Plaintiff.

The second element of the design immunity defense and whether there was discretionary approval is undisputed and not addressed in Plaintiff's opposition. (MTS' UMF 12-23, 27-28.) As to the third element, MTS met its initial burden the design and construction of the Washington Street Station/Crossing was reasonable. (MTS' UMF 12-35.) None of the facts cited in support of this element are disputed. The Declaration of Heather Furey and accompanying exhibits provides the substantial evidence required of a reasonable legislative body approving the plan or design. (ROA 416.) At most, Plaintiff maintains the original design is unreasonable because it did not contemplate pedestrians would use the Washington Street Station and/or adjacent walkways when approving the original design. (Opp., at p. 16:25-18:4.) This position lacks merit and supporting evidence. In reply, MTS points to several instances showing the design contemplated embarking/disembarking of passengers. (MTS' UMF 21-28.) Plaintiffs also do not otherwise argue any changed physical conditions resulting in loss of immunity.

Thus, it is undisputed design immunity applies as an affirmative defense.

As MTS established there is an affirmative defense to all causes of action against it, it is not necessary to determine the other issues and the Court GRANTS summary judgment.

NCTD's Motion NCTD's objections to the late Declaration of Shizhong Chen are sustained. (ROA 712.) NCTD Did Not Own, Operate or Control the Washington Street Station To establish a dangerous condition on public property, a plaintiff must prove the defendant owned or controlled the property. (Gov. Code, § 835.) A public entity may not be held liable under section 835 for a dangerous condition of property that it does not own or control. (Goddard v. Department of Fish & Wildlife (2015) 243 Cal.App.4th 350, 359.) Similarly, to the extent general negligence principles applies to a public entities, California law requires landowners to maintain land in their possession and control in a reasonably safe condition. (See, Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) Here, generally, the Complaint alleges a wall obstructed pedestrians' ability to understand the danger of southbound trains immediately to their right and to the west of the wall. (E.g., Complaint, at ¶ 48.) NCTD provided evidence NCTD does not own, operate or maintain the trolley station warning devices or grade crossing warning devices on the east side of the wall, where Plaintiffs alleged there was no signage or warnings, and that the warning devices are owned, operated and maintained by MTS. (UMF 8, 10; see, Declaration of Brian Shultz, at ¶ 8.) In opposition, Plaintiff did not technically dispute any of the facts cited in support of this issue. (UMF 1-10; C.C.P., § 437c(b)(3); CRC 3.1350(f)(2); Beltran, supra.) Thus, NCTD established both causes of action lack merit.

Design Immunity Applies Design immunity under Government Code section 830.6 is NCTD's 15th affirmative defense. (ROA 15.) For the first element, a causal relationship between the plan or design and the accident is satisfied.

(Cornette, supra, 26 Cal.4th at p. 66; Fuller, supra, 89 Cal.App.4th 1109, 1114; Complaint, at ¶¶ 49, 64.) NCTD's motion also addresses other unpled allegations that NCTD failed to carry out its duties for public Calendar No.: Event ID:  TENTATIVE RULINGS

3059788  38 CASE NUMBER: CASE TITLE:  HE VS METROPOLITAN TRANSIT SYSTEM [IMAGED]  37-2021-00002319-CU-PO-CTL safety because the southbound train approached the grade crossing from the right on the easternmost track and it should have traveled on the westernmost track. This is not contested by Plaintiff in opposition.

For the second element, it is undisputed NCTD gave discretionary approval for this plan. (UMF 43; ROA 652 - Declaration of Scott Shroyer, at ¶ 9.) This is also uncontested in Plaintiff's opposition.

For the third element, substantial evidence supports the reasonableness of the plan. (UMF 43.) UMF 43 is technically undisputed as Plaintiff's separate statement does not cite any evidence supporting its response. (C.C.P., § 437c(b)(3); CRC 3.1350(f)(2).) As explained in the Declaration of Scott Shroyer the rationale for the decision to have the southbound COASTER commuter trains use the easternmost track where there are two parallel tracks and northbound COASTER commuter trains use the westernmost track is related to station and platform placement. 'At stations with two platforms, passengers on the route can always expect to board or exit a train on the left side of the train's direction of travel, which is reasonable since it promotes safety and the orderly flow of passenger traffic to a station or platform.' (ROA 652 – Shroyer Decl., at ¶ 9.) Plaintiff does not argue nor provide any evidence that there is a loss of design immunity or any change in physical conditions. (Cornette, supra, 26 Cal.4th at p. 66.) Plaintiff's opposition argument about NCTD limiting its involvement with designing the tracks and failing to consider safety of the station users is incoherent and not supported by admissible evidence. Thus, Plaintiff has not established a factual dispute regarding the design immunity defense.

Since NCTD established the causes of action lack merit and a defense to both causes of action, it is not necessary for the Court to determine the other issues.

Accordingly, the Court GRANTS summary judgment.

SANDAG's Motion SANDAG's objections to the Declaration of Shizhong Chen are sustained. (ROA 702.) The record does not reflect the filing of a responsive separate statement as required by California Rules of Court, rule 3.1350(e)(2), (f); Beltran, supra.) Design immunity applies to SANDAG as well. (ROA 609 - Amended Answer, at Affirmative Defense No.

31.) For the first element, a causal relationship between the plan or design and the accident of the design immunity analysis is satisfied. (Cornette, supra, 26 Cal.4th at p. 66; Fuller, supra, 89 Cal.App.4th 1109, 1114; Complaint, at ¶¶ 49, 64; UMF 62-63.) For the second element, it is undisputed the station was designed and drafted by CH2M Hill and reviewed and approved by SANDAG's Resident Engineer acting with the authority of SANDAG to review and approve plans. (UMF 25-26, 29; ROA 658 – Tab 3 – Declaration of Hank Gentile.) This is uncontested in Plaintiff's opposition.

For the third element, substantial evidence supports the reasonableness of the plan. SANDAG provided undisputed evidence that multiple engineers, including the SANDAG Resident Engineer, approved the plans prior to construction and SANDAG's retained civil engineering expert found the plans to be reasonable. (UMF 25-26, 29-31.) Further, as explained by Rock Miller, applicable government standards were met. (UMF 30; ROA 658 – Tab 5 – Declaration of Rock Miller.) Plaintiff does not argue nor provide any evidence that there is a loss of design immunity or any change in physical conditions. (Cornette, supra, 26 Cal.4th at p. 66.) Rather, Plaintiff makes the same argument as she did in the other two oppositions and it too lacks merit and supporting evidence.

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3059788  38 CASE NUMBER: CASE TITLE:  HE VS METROPOLITAN TRANSIT SYSTEM [IMAGED]  37-2021-00002319-CU-PO-CTL As discussed by SANDAG, there is no independent theory of liability based on negligence. (Gov. Code, § 815.) Since SANDAG established a defense to both causes of action, it is not necessary for the Court to determine the other issues. Accordingly, the Court GRANTS summary judgment.

Concluding Orders Defendant Metropolitan Transit System's Motion for Summary Judgment is GRANTED. Judgment is entered in favor of Defendant Metropolitan Transit System and against Plaintiffs Shuxia He, individually and as successor in interest of the Estate of Wentian Zheng, Lillian Zheng, Lihong Zheng and Lihua Zheng.

Defendant North County Transit District's Motion for Summary Judgment is GRANTED. Judgment is entered in favor of Defendant North County Transit District and against Plaintiffs Shuxia He, individually and as successor in interest of the Estate of Wentian Zheng, Lillian Zheng, Lihong Zheng and Lihua Zheng.

Defendant San Diego Association of Governments' Motion for Summary Judgment is GRANTED.

Judgment is entered in favor of Defendant San Diego Association of Governments and against Plaintiffs Shuxia He, individually and as successor in interest of the Estate of Wentian Zheng, Lillian Zheng, Lihong Zheng and Lihua Zheng.

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

Defendant Metropolitan Transit System is ordered to serve written notice of the Court's final ruling on all appearing parties by May 29, 2024.

Defendants are ordered to prepare and submit judgment(s) in accordance with any applicable laws and rules of court.

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