Judge: Frank M. Tavelman, Case: 19STCV38886, Date: 2023-12-22 Tentative Ruling

REQUESTING ORAL ARGUMENT PER CRC 3.1308

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Notice of the ruling must be served as indicated in the tentative.  Remote appearances are permitted for all law and motion unless otherwise indicated by the Court.  

Case Number: 19STCV38886    Hearing Date: January 12, 2024    Dept: A

MOTION FOR SUMMARY JUDGMENT
Los Angeles Superior Court Case # 19STCV38886

NOTICE: 

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412. 

ALLEGATIONS:  

Ze Yu Bei aka Kevin Bei, a minor, through his guardian ad litem, Tian Le Bei (“Plaintiff”) filed suit against Arcadia Unified School District (“AUSD”), City of Arcadia (“Arcadia”), and James O'Brien (“O'Brien”) (collectively, “Defendants”), alleging that O'Brien harassed and assaulted Plaintiff over the course of several weeks in 2019. Plaintiff’s Fourth Amended Complaint (“4AC”) includes causes of action for (1) Negligence; (2) Battery (against O'Brien only); (3) Assault (against O'Brien only); (4) Intentional Infliction of Emotional Distress; and (5) Negligent Infliction of Emotional Distress. 

AUSD now moves for summary judgment, arguing that Plaintiff’s entire 4AC is barred by his failure to submit a timely government tort claim. AUSD also moves for summary judgment on grounds that AUSD is immune from common law tort liability by virtue of Government Code § 815. Plaintiff opposes the motion and AUSD replies. 

EVIDENTIARY OBJECTIONS: 

AUSD’s evidentiary objections to the declaration of Harrison Greenspan are OVERRULED for reasons that will be described in the Court’s ruling. 

ANALYSIS:  

I.                LEGAL STANDARD  

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 843.) C.C.P.¿§ 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to¿any material fact and that the moving party is entitled to judgment as a matter of law.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “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. (C.C.P.¿§437c(p)(2);¿Scalf v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) Courts “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.)¿ ¿ 

Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v.¿Paetkau¿(1998) 68 Cal.App.4th 151, 166.)¿  

II.              MERITS 

Government Tort Claim 

AUSD first argues that summary judgment as to the entire 4AC is appropriate because no triable issue of fact exists as to whether Plaintiff submitted a timely government tort claim to the appropriate government entity. AUSD submits the declaration of Nancy Doumanian (“Doumanian”), counsel for AUSD in this case and general counsel for AUSD. Doumanian states that she is familiar with government tort claims submitted to AUSD and the process of responding to them. (Doumanian Decl. ¶ 6.) Doumanian states that in her review of the school district’s records, she cannot locate a government tort claim presented on behalf of plaintiff at any time. (Doumanian Decl. ¶ 6.) AUSD argues the Doumanian declaration serves as evidence that any claim against AUSD is barred as a matter of law. The Court finds AUSD has satisfied its initial evidentiary burden. The burden thus shifts to Plaintiff to show a triable issue of fact exists as to whether he submitted a timely government tort claim. 

Plaintiff submits the declaration of his counsel Harrison Greenspan (“Greenspan”). Greenspan states that the government tort claim, attached to his declaration as Exhibit B, was submitted to AUSD on April 8, 2019. (Greenspan Decl. ¶ 3.) A review of the attached exhibit shows that it contains all of the information required as provided by statute. (See Gov. Code § 905 [providing claims must include: the names and addresses of the claimant and where notices are to be sent, a statement of the date, place, and other circumstances of the occurrence or transaction, a description of the indebtedness, obligation, injury, damage, or loss incurred, as far as they are known when the claim is presented, the name of the public employee who caused the injury, and the amount claimed if under $10,000, and if over $10,000 whether it would be a limited civil case].) The claim is signed by “Ashton Watkins” who identifies as the attorney for claimant Z.Y. Bei. (Greenspan Decl. Exh. B.) 

Plaintiff also submits, as Exhibit C to the Greenspan declaration, a purported response to the government tort claims from Hazelrigg Claims Management Services (“HCMS”). (Greenspan Decl. Exh. C.) The letter from HCMS is dated April 16, 2019 and states that HCMS is the third-party claims administrator of AUSD. (Greenspan Decl. Exh. B.) The letter states that HCMS “…received notice of the above references claim and are in the process of investigating this matter”. (Greenspan Decl. Exh. B.) 

AUSD objects to these exhibits on grounds that they are hearsay and cannot be properly authenticated. AUSD argues that the claim letter has no address and there is no response from the district to the claim. The Court disagrees. 

Exhibits presented in support of and in opposition to a summary judgment motion must be authenticated. While exhibits may be authenticated through attorney declarations, the attorney so declaring must demonstrate personal knowledge of how various documents were obtained, how they have been identified, and who had identified them. (Greenspan v. LADT, LLC (2010) 191 Cal.App.4th 486, 523.) 

Here, Greenspan has appropriately authenticated the government tort claim and the letter received in response by virtue of his declaration sworn under penalty of perjury. The purpose of summary judgment is not to weigh the credibility of the evidence offered; it is only to determine whether the evidence offered creates a triable issue of fact. The Court finds the exhibits proffered by Plaintiff establish a triable issue of fact as to whether Plaintiff submitted a timely government tort claim. AUSD’s arguments that their evidence, the declaration of Doumanian, is superior to Plaintiff’s fail under the standard for summary judgment. 

In short, AUSD satisfied its initial burden to show that no triable issue of material fact existed that Plaintiff did not submit a government tort claim. Plaintiff has presented evidence that a government tort claim was in fact filed and a response received thereto. As such a triable issue of material fact remains. 

Gov Code 815 

AUSD also moves on grounds that no triable issue of fact exists as to any cause of action stated against them. Plaintiff’s causes of action are his first cause of action for Negligence, fourth cause of action for Intentional Infliction of Emotional Distress, and fifth cause of action for Negligent Infliction of Emotional Distress. AUSD’s arguments with respect to each of these causes of action are identical. AUSD argues, as it has before, that these causes of action are barred as matter of law because a Government Entity has no common law tort liability. The Court notes that AUSD’s argument with regard to Government Code § 815 is the same argument presented on demurrer to Plaintiff’s Third Amended Complaint. AUSD offers no new authority to augment its previous position, nor does it present any authority which would differentiate its argument in the context of a motion for summary judgment. 

The Court maintains that AUSD has not shown that O’Brien’s actions fall within the scope of Gov. Code § 815. AUSD presents no argument which addresses the Court’s previous finding that Government Code § 815 is not applicable to Plaintiff’s claims. For the sake of a clear record, the Court will state its reasoning again here. 

AUSD argues that they have no liability as a function of Government Code § 815, which reads “Except as otherwise provided by statute: (a) 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.” AUSD argues this section grants them immunity from claims arising from actions of their employees unless those claims are based in statute. However, this code section is not dispositive of all such actions against public entities. 

Government Code § 815.2(a) provides that “A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of [the employee’s] employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative” This code section allows claims of vicarious liability to be brought against school districts which claim negligence of a school’s employee and failure to protect. (See C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861.) Plaintiff’s claims in the first, fourth, and fifth causes of action arise from the conduct of O’Brien, a district employee, and seek to hold AUSD vicariously liable for injuries that resulted from his actions. 

The Court does not believe O’Brien alleged actions qualify as an act within his discretion as provided by Gov. Code § 820.2. The primary case interpreting whether an act of an employee is one within its discretion is Johnson v. State (1968) 69 Cal.2d 782. The California Supreme Court held that the mere existence of a discretionary choice in the act to be performed does not qualify as an act under 820.2, as nearly every act by a public employee involves some amount of discretion. (Id. at 788.) Instead, it was held that immunity should only attach to those decisions which involve “basic policy” choice such that they constitute an exercise of discretion by a coordinate branch of government. (Id. at 793.) The Court finds that the alleged acts of harassing Plaintiff and striking him on the head do not fall within the scope of basic policy choices. 

The only new authority offered by AUSD in its motion speaks not to the application of § 815, but to the requirement that statutory causes of action against government entities be pleaded with specificity. This authority relates to the standards in considering a demurrer and assumes the application of § 815 is proper. 

The remainder of AUSD’s motion argues that no triable issue of fact exists because Plaintiff has not stated a statute upon which his first, fourth, and fifth causes of action may be predicated. This argument presumes the Court has found the common law tort claims are barred by function of Government Code § 815, which it has not. 

Accordingly, the motion for summary judgment is DENIED. As AUSD states no separate grounds for its motion for summary adjudication of the first, fourth, and fifth causes of action, that motion is also DENIED. 

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RULING: 

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER  

Arcadia Unified School District Motion for Summary Judgment came on regularly for hearing on January 12, 2024, with appearances/submissions as noted in the minute order for said hearing, and the Court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR SUMMARY JUDGMENT IS DENIED.

THE MOTION FOR SUMMARY ADJUDICATION OF THE FIRST, FOURTH, AND FIFTH CAUSES OF ACTION IS DENIED.

UNLESS ALL PARTIES WAIVE NOTICE, AUSD TO PROVIDE NOTICE.

IT IS SO ORDERED. 

DATE:  January 12, 2024                            _______________________________ 

                                                                        Yolanda Orozco, Judge 

Superior Court of California 

County of Los Angeles