Judge: Gary Y. Tanaka, Case: 20TRCV00048, Date: 2022-12-12 Tentative Ruling
Case Number: 20TRCV00048 Hearing Date: December 12, 2022 Dept: B
LOS ANGELES SUPERIOR COURT –
SOUTHWEST DISTRICT
Honorable Gary Y. Tanaka Monday, December 12, 2022
Department B Calendar No. 10
PROCEEDINGS
Rachel
Muzatko v. City of Hermosa Beach, et al.
20TRCV00048
1. City of Hermosa Beach, et al.’s Motion for Summary
Judgment, or, Alternatively, for Summary Adjudication
TENTATIVE RULING
City of Hermosa Beach, et al.’s
Motion for Summary Judgment, or, Alternatively, for Summary Adjudication is denied.
Background
Plaintiff filed the Complaint on January 15, 2020. Plaintiff alleges the following facts. Plaintiff
was employed as a police officer with the City of Hermosa Beach. Plaintiff was
injured as an officer, and then improperly investigated in contravention of her
rights under the Public Safety Officers Procedural Bill of Rights Act. Plaintiff was retaliated against for
attempting to exercise those rights and her due process rights were violated. Plaintiff alleges the following causes of
action: 1. Violation of the Public Safety Officers Procedural Bill of Rights
Act, Gov. Code Sections 3303, et seq.; 2. Declaratory Relief; 3. Whistleblower
Retaliation; 4. Violation of Due Process.
Objections
Plaintiff’s Objections
Declaration of Mick Gaglia – Objections 1 to 5 are
overruled.
Declaration of Landon Phillips – Objections 6 to 18
are overruled.
Declaration of Adam Smith – Objections 19 to 21 are
overruled.
Defendants’ Objections
Defendants’ objections to matters set forth in
Plaintiff’s Separate Statement of Facts are overruled. Matters set forth in the
separate statement of facts do not consist of evidence. Defendants failed to
set forth proper evidentiary objections to specific pieces of evidence in the
format required by Cal. Rules of Court, Rule 3.1354.
Motion for Summary Judgment and/or Summary
Adjudication
The purpose of a motion for summary judgment or
summary adjudication “is to provide courts with a mechanism to cut through the
parties’ pleadings in order to determine whether, despite their allegations,
trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c,
subdivision (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.)
“On a motion for summary judgment, the initial burden
is always on the moving party to make a prima facie showing that there are no
triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal. App. 4th 1510, 1519.) A
defendant moving for summary judgment or summary adjudication “has met his or
her burden of showing that a cause of action has no merit if the party has
shown that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of action.” CCP § 437c(p)(2). “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 the cause of action or a defense thereto.” CCP
§ 437c(p)(2). “If the plaintiff cannot
do so, summary judgment should be granted.”
Avivi v. Centro Medico Urgente
Medical Center (2008) 159 Cal. App. 4th 463, 467.
“A plaintiff or cross-complainant has met his or her
burden of showing that there is no defense to a cause of action if that party
has proved each element of the cause of action entitling the party to judgment
on the cause of action. Once the plaintiff or cross-complainant has met that
burden, the burden shifts to the defendant or cross-defendant to show that a
triable issue of one or more material facts exists as to the cause of action or
a defense thereto.” Code Civ. Proc., § 437c(p)(1).
“When deciding whether to grant summary judgment, the
court must consider all of the evidence set forth in the papers (except
evidence to which the court has sustained an objection), as well as all
reasonable inferences that may be drawn from that evidence, in the light most favorable
to the party opposing summary judgment.”
(Avivi, 159 Cal.App.4th at
467; CCP § 437c(c).)
Defendants move for summary judgment of the Complaint.
Alternatively, Defendants move for summary adjudication of the first, second,
third, and fourth causes of action of the Complaint. The motion is made on the grounds that there
is no triable issue as to any material fact, and that Defendants are entitled
to judgment as a matter of law.
First, the Court exercises its discretion to proceed
with, analyze, and rule upon Defendants’ motion solely as a motion for summary
judgment. Significant procedural defects
with the notice of motion and separate statement, with respect to the
alternative motion for summary adjudication, supports the Court’s exercise of
discretion to proceed solely as a motion for summary judgment.
Cal Rules of Court, Rule 3.1350(b) states, in relevant
part: “If summary adjudication is sought, whether separately or as an
alternative to the motion for summary judgment, the specific cause of action,
affirmative defense, claims for damages, or issues of duty must be stated
specifically in the notice of motion and be repeated, verbatim, in the separate
statement of undisputed material facts.”
Cal. Rules of Court, Rule 3.1350(d)(3) states, in relevant
part: “The separate statement must be in the two-column format specified in
(h).”
Cal. Rules of Court, Rule 3.1350(h) outlines, with
specificity, the manner in which a separate statement for a motion for summary
adjudication must be set forth, which includes the requirement to separately
identify each issue before then setting forth the facts and the supporting
evidence which are pertinent to each issue. Thus, here, each issue was mandated to be
stated in the separate statement, and, then, the pertinent facts to follow each
issue.
Defendants failed to follow the requirements of Rule
3.1350(b), (d)(3), and (h). While Rule
3.1350 appears to require strict compliance with the requirements by utilizing
the mandatory language, “must,” the Court notes that authority exists that the
Court, in its discretion, may choose to ignore procedural deficiencies with
respect to a separate statement of facts. “The statute governing the format of summary
judgment moving papers, is permissive, not mandatory: ‘[f]acts stated elsewhere
[other than in the separate statement] need not be considered
by the court.” Brown v. El Dorado
Union High School Dist. (2022) 76 Cal.App.5th 1003, 1019 (internal
citations and quotations omitted; emphasis in original.) However, the Court notes that both cases cited
by Defendants in attempt to persuade the Court to excuse these deficiencies
dealt with solely a motion for summary judgment, rather than a motion for
summary adjudication. See, Id.; See,
also, Truong v. Glasser (2009) 181 Cal.App.4th 102, 118.
Here, in the instant action, the separate statement is
sufficient for the Court to proceed with this motion as a motion for summary
judgment. However, the separate
statement, by not separating the issues sought to be adjudicated and the
pertinent facts that correspond to each issue, is not compliant with Rule
3.1350. Defendants argue, in a cursory
manner, that the facts and issue overlap. While this may be true to a certain extent as
to the first and second cause of action, and parts of the fourth cause of
action, certain distinct facts and evidence are unique to the third cause of
action. Instead, the separate statement
of facts resembles solely the type of separate statement that would be set
forth for a motion for summary judgment, only, and not a motion for summary
adjudication. In addition, the Court
further notes that the issues sought to be adjudicated were not repeated
verbatim in the notice of motion and separate statement of facts. The Court exercises its discretion to deny the
alternative motion for summary adjudication based on the procedural deficiencies.
Therefore, the Court will proceed with
this motion solely as a motion for summary judgment. Thus, if there is one, single material fact in
dispute, the motion for summary judgment must be denied.
Defendants have met their initial burden to show that
Plaintiff’s causes of action have no merit by showing that an essential element
of the causes of action cannot be established and/or that a complete defense
exists to the causes of action. However,
Plaintiff has met her burden to show that a triable issue of material fact
exists as to a cause of action. CCP §
437c(p)(2).
Gov. Code, § 3303(c) states, in relevant part:
“When any public safety officer is under investigation
and subjected to interrogation by his or her commanding officer, or any other
member of the employing public safety department, that could lead to punitive
action, the interrogation shall be conducted under the following conditions.
For the purpose of this chapter, punitive action means any action that may lead
to dismissal, demotion, suspension, reduction in salary, written reprimand, or
transfer for purposes of punishment.
(c) The public safety officer under investigation
shall be informed of the nature of the investigation prior to any
interrogation.”
Plaintiff has submitted evidence to show the existence
of a triable issue of fact as to whether Defendants properly informed Plaintiff
of the nature of the investigation prior to any interrogation. (Plaintiff’s
Separate Statement of Facts and Supporting Evidence, 23.) Defendants argue, in the alternative, that any
purported violation consists of harmless error. However, the Court notes that the case
primarily relied upon by Defendants involved a review of a petition for writ of
mandate, and not a motion for summary judgment. Hinrichs v. City of Orange County
(2004) 125 Cal.App.4th 921 (finding that error in complying with
POBRA actually did not constitute harmless error). However, with a motion for summary judgment, a
determination of whether a procedural error in complying with POBRA is harmless
error will necessarily involve a determination of factual issues and the
weighing of evidence which is improper with a motion for summary judgment.
Because the Court has identified a single triable
issue of material fact which defeats the motion for summary judgment, the Court
declines to rule upon the merits of the motion for summary judgment as to every
specific alleged violation of POBRA which has been identified in the Complaint
and outlined in the motion and opposition. To do so may constitute an advisory opinion as
to the respective merits of the Plaintiff’s claims and Defendants’ opposition. In addition, as already noted above, the Court
exercises its discretion to decline to rule upon the merits of each specific
cause of action based on the defect in the notice and separate statement of
facts with respect to the alternative request for a motion for summary
adjudication.
Therefore, for the foregoing reasons, Defendants’
Motion for Summary Judgment and/or, Alternatively, for Summary Adjudication is
denied.
Plaintiff is ordered to give notice of this ruling.