Judge: H. Jay Ford, III, Case: 21STCV06205, Date: 2023-04-11 Tentative Ruling

Case Number: 21STCV06205    Hearing Date: April 11, 2023    Dept: O

Case Name:  Pan v. City of Malibu, et al.

SUBJECT:                 MOTION FOR SUMMARY ADJUDICATION

MOVING PARTY:   Defendant City of Malibu

RESP. PARTY:         Plaintiff Bonnie Pan

TENTATIVE RULING

            Defendant City’s Motion for Summary Adjudication of the 2^nd cause of action for negligence is GRANTED.  Defendant negates any liability based on the statutes cited in Plaintiff’s 2^nd cause of action for negligence based on Government Code §§815.2, 815.4 and 820 due to immunity under Government Code §840.  Plaintiff fails to raise triable issues of fact based on the operative complaint.  To the extent Plaintiff seeks leave to add Government Code §840.2 to the 2^nd cause of action as grounds for liability, she must move to do by noticed motion under CCP §473(a) and CRC Rule 3.1324.

            The Court does not rule on City’s evidentiary objections because they are immaterial to its ruling. CCP §437c(q). 

            City argues it cannot be held liable for common law negligence under the 2^nd cause of action for negligence.  Plaintiff’s 2^nd cause of action is not seeking to impose common law negligence liability on the City.  Plaintiff’s 2^nd cause of action seeks to impose statutory liability against City for the negligent acts of its employees and independent contractors pursuant to Government Code §§820, 815.2(a) and 815.4.  City argues it cannot be held statutorily liable for the negligence of its employees or Burns Pacific under §§820, 815(a) and 815.4, because these statutes do not apply.    

I.  Liability under Government Code §815.2(a) and Immunity under Government Code §840.2

            Government Code §815.2(a) provides:  “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 his 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.” 

            “[P]ublic entity liability for property defects is not governed by the general rule of vicarious liability provided in section 815.2, but rather by the provisions in sections 830 to 835.4 of the Government Code. A public employee is not liable for injuries caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment. (Gov.Code, § 840.) This is specifically what the plaintiffs allege in this cause of action. That is, that a dangerous condition of public property existed which should have been repaired by an employee of the County working within the scope of his employment and that, therefore, the County may be vicariously liable for the employee's failure to act. However, since the employee is immune, the public entity cannot be held liable for the acts of the employee and plaintiffs have no such cause of action.”  Longfellow v. County of San Luis Obispo (1983) 144 Cal.App.3d 379144 Cal.App.3d 379, 383. 

            City argues Government Code §815.2 does not apply to Plaintiff’s situation, because she is claiming dangerous condition, which is governed exclusively by Government Code §835.  City’s argument is well-taken.  Plaintiff is undisputedly claiming a dangerous condition.  See Oppositon, 1:12-14; Court’s 11-3-22 Ruling on Summary Judgment.  Plaintiff also is seeking to hold City vicariously liable for the dangerous condition based on the negligent acts of its employees and independent contractors.  See Plaintiff’s Opposition, 1:22-23. 

            Government Code §840 provides, “Except as provided in this article, a public employee is not liable for injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment. The liability established by this article is subject to any immunity of the public employee provided by statute and is subject to any defenses that would be available to the public employee if he were a private person.”

            Based on Government Code §840, Longfellow and Van Kempen v. Hayward Area Park etc. Dist. (1972) 23 Cal.App.3d 822, 823-825, Plaintiff cannot impose vicarious liability on the City for a dangerous condition of property created by the negligent acts of its employees.   Government Code §840 immunizes the employees from such liability thereby precluding imposition of vicarious liability on the public employer under Government Code §815.2. 

            In response, Plaintiff argues City fails to establish the elements of Government Code §840.  The Court disagrees. Based on Plaintiff’s undisputed complaint and her opposition, Plaintiff is attempting to hold City vicariously liable for a dangerous condition of property created by the negligent acts of its employees. 

            As such, Defendant satisfies its burden as moving party as to vicarious liability under Government Code §815.2(a) by raising an affirmative defense under Government Code §840 and establishing that §815.2(b) applies, “[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” 

            Plaintiff argues an exception to immunity under Government Code §840 exists under Government Code §840.2 which affirmatively imposes liability on an employee who negligently creates a dangerous condition when certain conditions are met. However, as Plaintiff acknowledges in opposition, Government Code §840.2 is not alleged in her complaint as grounds for statutory liability. 

            Defendant City has negated Plaintiff’s claim based on Government Code §815.2 as alleged in her complaint, which is all that it is required to do.  As City argues on reply, City’s motion cannot be denied based on an unpled theory of liability.  “The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to¿frame¿the outer measure of materiality in a summary judgment proceeding.”  See Hutton v. Fidelity National Title Co.¿(2013) 213 Cal.App.4th 486, 493.  “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability¿as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.”  Id. 

            “If plaintiff wishes to expand the issues presented, it is incumbent on plaintiff to seek leave to amend the complaint either prior to the hearing on the motion for summary judgment, or at the hearing itself.  To allow a party to expand its pleadings by way of opposition papers creates, as it would here, an unwieldy process.”  Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.  Plaintiff must seek leave to amend by noticed motion in compliance with CCP §473(a) and CRC Rule 3.1324. 

II.  Liability under Government Code §820 and Discretionary Immunity under Government Code §820.2

            Government Code §820 provides, “Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.”  As discussed in connection with Government Code §815.2, Government Code §840 immunizes an employee from liability for “injury caused by a condition of public property where such condition exists because of any act or omission of such employee within the scope of his employment.”  As such, Defendant City negates any liability based on Government Code §820.

            However, Defendant fails to establish that Government Code §820.2 immunity applies.   In interpreting GC §820.2, a literal interpretation of “discretionary” does not apply.  See Johnson v. State (1968) 69 Cal.2d 782, 790.  The mere fact that a government employee faces alternatives “does not perforce lead to a holding that the governmental unit thereby attains the status of non-liability under section 820.2. These alternatives may well play a major part in the resolution of the substantive question of negligence; they do not, however, dispose of the threshold question of immunity.”  Johnson, supra, 69 Cal.2d at 790. 

            “The Supreme Court has interpreted section 820.2 to allow immunity for basic policy decisions by government officials, but not for the ministerial implementation of that basic policy. In Johnson, the Court characterized this distinction as being between the ‘planning’ and ‘operational’ levels of decision-making.  There is no basis for immunizing lower level decisions that merely implement a basic policy already formulated.  The scope of the discretionary act immunity should be no greater than is required to give legislative and executive policymakers sufficient breathing space in which to perform their vital policymaking functions.”  Regents of University of California v. Superior Court (2018) 29 Cal.App.5th 890, 915 (quoting Johnson v. State of California (1968) 69 Cal.2d 782, 796). 

            “Immunity for ‘discretionary’ activities serves no purpose except to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government. Accordingly, to be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place. The fact that an employee normally engages in ‘discretionary activity’ is irrelevant if, in a given case, the employee did not render a considered decision.”  Johnson v. State (1968) 69 Cal.2d 782, 795.

            Defendant City fails to establish that Plaintiff is seeking to impose vicarious liability on it based on a government official’s “policy decision” or that application of discretionary immunity here would be in keeping with the Legislative intent “to give legislative and executive policymakers sufficient breathing space in which to perform their vital policymaking functions.”  Regents, supra, 29 Cal.App.5th at 915.  None of the facts identified in the City’s separate statement show “that such a policy decision, consciously balancing risks and advantages, took place” or that it was such a policy decision that resulted in the alleged dangerous condition that injured Plaintiff.  Id. at 795.  Defendant City’s motion for adjudication of the second cause of action based on Government Code §820.2 fails. 

III.  Government Code §815.4 and Lack of Duty to Public on part of Burns Pacific and Government Code §820.2 Discretionary Immunity

            “A public entity is liable for injury proximately caused by a tortious act or omission of an independent contractor of the public entity to the same extent that the public entity would be subject to such liability if it were a private person. Nothing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee of the public entity.”  Gov. Code §815.4.

            Defendant City argues neither its employees or its independent contractor, Burns Pacific, would have been liable for its discretionary decisions in trimming the trees pursuant to Government Code §820.2.  However, as discussed above, City fails to establish that discretionary act immunity applies. 

            Defendant City also argues the independent contractor did not owe the public, including Plaintiff, an independent duty of care sufficient to support a claim of negligence.  Defendant City fails to establish that no duty of care should be imposed under the alleged circumstances.  White v. So. Ca. Edison Co. (1994) 25 Cal.App.4^th 442, 451 is distinguishable, because it involved an accident allegedly caused by an inoperable street light owned and maintained by a public utility pursuant to a contract with the county.  The finding that the public utility did not owe any duty of care to the motoring public was completely depending on the specific facts of the case.  Id.  The question here is whether the independent contractor hired by the City would owe a duty of care to the general public.  City does not engage in the Rowland analysis to establish that no such duty of care should be imposed.  City fails to establish the absence of any duty owed by the independent contractor to the public on summary judgment. 

            However, as discussed in connection with Government Code §840, the City cannot be held vicariously liable for an injury due to a dangerous condition that exists because of an act or omission by an employee within the scope of the employee’s duties.  Government Code §815.4 states, “[n]othing in this section subjects a public entity to liability for the act or omission of an independent contractor if the public entity would not have been liable for the injury had the act or omission been that of an employee of the public entity.”  Plaintiff is alleging that City is vicariously liable for Burns Pacific’s negligent conduct in creating the dangerous condition that caused her accident.  If Burns Pacific were an employee of City, City would not be vicariously liable for Burns Pacific’s acts. As such, City cannot be held vicariously liable under Government Code §815.4 for Burns Pacific’s acts.

            Defendant negates any liability based on Government Code §815.4.  Plaintiff fails to raise a triable issue of fact as to Plaintiff’s 2^nd cause of action based on Government Code §815.4.