Judge: H. Jay Ford, III, Case: 21STCV06205, Date: 2023-06-22 Tentative Ruling

Case Number: 21STCV06205    Hearing Date: June 22, 2023    Dept: O

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

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

MOVING PARTY:   Defendant Burns-Pacific Construction, Inc.  

RESP. PARTY:         Plaintiff Bonnie Pan

TENTATIVE RULING

             Defendant Burns-Pacific Construction, Inc.’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication is DENIED.

            Defendant’s request for judicial notice (RJN) is GRANTED. 

            Defendant’s objections nos. 1 and 2 to the declaration of Edward  Ruzak are OVERRULED.

            Defendant Burns-Pacific Construct, Inc. moves for summary judgment of the sole cause of action for negligence alleged against it.  Defendant argues the undisputed facts establish that it did not owe Plaintiff a duty of care, because (1) it did not own or control the property; (2) the property was owned and controlled by the City and Plaintiff’s only remedy is per Government Code §835; (3) the City’s duty is nondelegable to an independent contractor; and (4) plaintiff’s injury does not arise out of Burns-Pacific’s negligence and no claim for negligence can be stated against it.  Defendant also argues its work in the area prior to the accident was not a substantial factor in causing Plaintiff’s injuries.

I.  Defendant fails to establish absence of a duty of care.

            Defendant’s authority does not establish that a private entity independently contracted by a public entity cannot be held liable for its own negligence.  Defendant cites inapposite authority involving a dispute over which of two public entities owned or controlled a strip of public property under Government Code §830.  “The appeal turns on the phrase ‘owned or controlled’ in subdivision (c) of section 830.”  Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 831.  The Court found that both public entity defendants were concurrently liable as an issue of law for the damage verdict, because the city owned the parking strip and the county controlled it  under Government Code §830.  Id. at 829.  The issue raised by Defendant in this motion for summary judgment was not raised—whether an independent contractor hired to maintain property owned by a public entity owes a duty of care to members of the public. 

            In addition, Plaintiff cites to Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5^th 914, which addressed the very question presented here: whether a private contractor hired by a public entity to maintain public property owes a duty of care to a plaintiff who is not in privity with the private contractor.  Applying the factors set forth in Biakanja v. Irving (1958) 49 Cal.2d 647, the Court found that the third-party private contractor hired by the City of Glendale owed the plaintiff, a member of the public, a duty of care.  Lichtman, supra, 16 Cal.App.5^th at 924.  The Court also found a duty under a negligent undertaking theory.  Id. at 926. 

            Under Biakanja, Defendant’s assertion that it did not own or control the property alone would be insufficient to establish lack of duty.  Ownership and control are not essential elements of an ordinary negligence claim, nor does Defendant address its lack of ownership or control in the context of the Biankanja factors.  Under Lichtman, which involved similar facts, a private independent contractor hired to maintain public property owes a duty of care to plaintiffs who were not parties to the contract pursuant to Biankanja and the negligent undertaking doctrine.

            In addition, Plaintiff raises a triable issue of fact as to whether Defendant controlled the property.  It is undisputed that Defendant is not a public entity and it did not own any portion of the road where the accident occurred.  See Plaintiff’s Response to Defendant’s SSUMF No. 11. 

            However, there is a dispute over whether Defendant controlled the area for purposes of maintenance, including trimming of vegetation.  Defendant admits that its contract with the City required it to perform street maintenance where the accident occurred and that maintenance included brush clearance as directed by the City.  See Defendant’s SSUMF No. 14.  However, Plaintiff submits evidence that Defendant had the authority to trim back the overgrowth and the obligation to do so.  See Plaintiff’s Response to Defendant’s SSUMF No. 14; Plaintiff’s Separate Statement of Undisputed Material Facts Nos 2, 6, 8, 9, 13-20, 41, 45, 48-55.  Plaintiff also submits evidence that Defendant historically would trim back the overgrowth and was authorized by the City to do so a month before Plaintiff’s accident.  Id.  Plaintiff therefore raises a triable issue of fact regarding Defendant’s control of the property for purposes of maintenance.  

            As moving party, it was Defendant’s burden on summary judgment to negate the existence of a duty of care.  Defendant does not address the Biakanja factors or the applicability of the negligent undertaking doctrine, nor does Defendant cite any case law holding that private contractors under the facts presented do not owe a duty of care to persons injured by their negligence as an issue of law.  Similarly, Defendant has failed to show how the consideration of the so called “Roland factors” shows Defendant did not owe any duty of care to Plaintiff.  

            Finally, Defendant fails to establish that Plaintiff’s sole remedy is against the City. Defendant argues that it cannot be held liable for failing to maintain the roadway, because such a duty is nondelegable and City remains liable for any injuries arising from the failure to maintain.  Defendant fails to cite any authority holding that a contractor is immune from liability for its own negligence where the owner’s duty is nondelegable or that a plaintiff is limited to recovery against the public entity owner under Government Code §835. 

            In fact, the Defendant’s authority confirms that under the doctrine of nondelegable duty, “a landlord cannot escape liability for failure to maintain property in a safe condition by delegating such duty to an independent contractor.”  Srithong v. Total Investment Co. (1994) 23 Cal.App.4^th 721, 726.  The doctrine is a form of vicarious liability and does not concern the liability of a contractor or agent for the contractor’s or agent’s own negligence.  Id. at 727.  In Srithong, both the contractor and the owner were held liable for the plaintiff’s injuries due to the contractor’s negligent roofing repair.  Id. at 725 (Prop 51 did not apply to noneconomic damages against owner because owner was vicariously liable for contractor’s negligence in repairing leaks on roof, which injured plaintiff). 

II. Triable issues of fact remain as to causation.

            “Ordinarily, proximate cause is a question of fact which cannot be decided as a matter of law from the allegations of a complaint.... Nevertheless, where the facts are such that the only reasonable conclusion is an absence of causation, the question is one of law, not of fact.”  State Dept. of State Hospitals v. Supr. Ct. (2015) 61 Cal.4th 339, 353.

            Defendant argues it was not a substantial factor in causing Plaintiff’s injury, because it did not control the site of the accident and it did not participate in the design or construction of Malibu Road.  As discussed in connection with the question of duty, triable issues of fact remain as to whether Defendant controlled the roadway, because Defendant was authorized and obligated to cut back vegetation from the retaining wall.  See Plaintiff’s Response to Defendant’s SSUMF No. 14; Plaintiff’s Separate Statement of Undisputed Material Facts Nos 2, 6, 8, 9, 13-20, 41, 45, 48-55.  

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

SUBJECT:                 MOTION FOR LEAVE TO AMEND

MOVING PARTY:   Plaintiff Bonnie Pan

RESP. PARTY:         Defendant Burns-Pacific Construction, Inc.   

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ALT TO DENY TENTATIVE RULING

            Plaintiff Bonnie Pan’s Motion for Leave to Amend is DENIED. 

            Plaintiff seeks leave to file a second amended complaint  to resurrect her 2^nd cause of action for negligence against the City.  On November 3, 2022 the Court granted the City’s motion for summarily adjudication of that cause of action. 

            While there are arguably conflicting opinions from the Court of Appeal regarding when and how a plaintiff should seek leave to amend it complaint when facing a motion for summary judgment, the more recent and persuasive opinions confirm the proper time to request leave to amend is prior to the hearing on the motion for summary judgment, or at least prior to the Court’s order granting summary adjudication. See, Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 176 (The trial Court’s denial of oral request for leave to amend at hearing on motion for summary judgment was proper finding “[i]t would be patently unfair to allow plaintiffs to defeat UCI's summary judgment motion by allowing them to present a “moving target” unbounded by the pleadings.”;  Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal.App.4th 1263, 1280 (affirming trial court’s denial of Plaintiff’s exparte application to shorten time to hear the plaintiff’s untimely motion for leave to amend before the hearing on the Defendant’s motion for summary judgment.); Laabs v. City of Victorville  (2008) 163 Cal.App.4th 1242, 1257 (“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.”)

            Regardless of the proper time to seek such leave, the manner in which such a request must be made is clear:  by a written motion accompanied by a copy of the proposed amendment or amended pleading. See, Dang v. Smith (2010) 190 Cal.App.4th 646 (“A ‘plaintiff cannot bring up new, unpleaded issues in his or her opposing papers. [Citation.]’ [Citations.] A summary judgment or summary adjudication motion that is otherwise sufficient ‘cannot be successfully resisted by counterdeclarations which create immaterial factual conflicts outside the scope of the pleadings; counterdeclarations are no substitute for amended pleadings. [Citation.]. If a party seeks to avoid summary judgment by going outside the pleadings, it is incumbent upon him to move to amend in a timely fashion. (Citations.) “’ If the opposing party's evidence would show some factual assertion, legal theory, defense or claim not yet pleaded, that party should seek leave to amend the pleadings before the hearing....’”.) And in moving to amend, he must “[i]nclude a copy of the proposed amendment or amended pleading.” (Citations.)

            Plaintiff did not bring this motion until a month after the Court had summarily adjudicated Plaintiff’s negligence claim against the City.  In opposing the motion for summary judgment, the Plaintiff argued the proposed amendment was unnecessary to support Plaintiff’s theory of liability under Government Code §840.2. And in a footnote Plaintiff blamed the City for not giving Plaintiff notice the City intended to rely on Government Code §840, stating “[i]f Plaintiff had been given earlier notice that the City intended to rely on section 840, then Plaintiff would have expressly alleged section 840.2 as a defense to that section. In view of this, should the Court conclude that it was necessary for Plaintiff to expressly allege section 840.2, then Plaintiff requests for an opportunity to amend her complaint to now do so.”  (Plaintiff’s opposition, Fn.4, pg.10 (filed 3-28-2023).) The Court denied Plaintiff’s request concluding that if Plaintiff wanted to amend the complaint, Plaintiff must do so by a noticed motion under CCP §473(a) and CRC Rule 3.1324.  In directing counsel to meet and confer regarding Plaintiff’s proposed amended complaint, the Court did not consider or address the merits or timeliness of any such motion.

            Finally, Plaintiff has failed to justify Plaintiff's delay in seeking leave to amend. “[E]ven if a good amendment is proposed in a proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial.”  See P&D Consultants (2010) 190 Cal.App.4th 1332, 1345 (plaintiff’s motion for leave was based on new case decided one year before motion for leave was brought; trial court properly denied leave to amend where no explanation was provided for the delay); Huff v. Wilkins (2006) 138 Cal.App.4th 732, 746 (trial court properly denied leave to amend where plaintiff moved for leave three days before hearing on defense summary judgment, plaintiff provided no new facts to support amendment alleging reckless conduct and plaintiff failed to proffer any explanation for his delay in seeking leave).  

            In his declaration in support of the motion for leave to amend, Mr. Nickerson does not offer any evidence or explanation for Plaintiff’s seeking leave to amend.  Nor was any evidence submitted with Plaintiff’s opposition to the City’s motion motion for summary adjudication supporting Plaintiff’s explanation: “Plaintiff did not appreciate that the City was actually relying on Section 840. The City instead asserted Government Code section “40” in its answer (at paragraph 20). It now appears that this was a typographical error, but Plaintiff did not earlier know what defense the City actually intended to assert.”  That explanation seems odd.  In the City’s answer, 24 out of the 27 paragraphs specifically cited Government Code sections from the 800 series addressing the liability of public entities and public employees. (See, Government Code §§830-840.6)  It seems odd that Plaintiff’s counsel did not immediately appreciate the reference to “Government Code §40” in paragraph 20 of the answer was a typo and recognize it likely referred to Section 840, especially when that paragraph virtually quoted the language of Section 840.

            Regardless, there is no evidence or persuasive explanation why Plaintiff did not file their motion for leave to amend promptly after December 8, 2022, when the City filed its motion for summary adjudication judgment, and when it was unavoidably clear the City relied on Section 840.  Plaintiff, therefore, has not met her burden to show why her motion for leave to amend was timely filed after the motion for summary judgment was granted.