Judge James L. Crandall, Case 20-1167350 2022-11-03 Tentative Ruling

Judge: James L. Crandall, Case: 20-1167350, Date: 2022-11-03 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

Defendant County of Orange’s (“County”) unopposed motion for summary judgment in its favor and against plaintiff Roxana Pahissa-Vasquez is GRANTED.

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c(a)(1).)

“A defendant or cross-defendant 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant 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)(2).)

The Complaint alleges causes of action for (1) Liability for Dangerous Condition of Public Property (Gov. Code § 835 et seq.); (2) Vicarious Liability for the Wrongful Acts or Omissions by Public Entity Employees and/or Retention of Unfit Employee (Gov. Code § 815.2); (3) Premises Liability; and (4) Negligence.

First Cause of Action for Liability for Dangerous Condition of Public Property Pursuant to Government Code Section 835 et seq.:

Government Code Section 835 provides: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Emphasis added.)

“For purposes of this section, property of a public entity means real or personal property ‘owned or controlled by the public entity.’ ” (Goddard v. Dep’t of Fish & Wildlife (2015) 243 Cal.App.4th 350, 358.) “A public entity may not be held liable under section 835 for a dangerous condition of property that it does not own or control.” (Ibid.)

The County argues that it cannot be held liable for a dangerous condition of public property pursuant to Government Code Section 835 et seq. because it does not own, control, or maintain the location where Plaintiff slipped and fell.

The County has shown that on September 21, 2020, Plaintiff submitted a Government Claim to the County pursuant to Government Code Section 911.2 alleging that on September 7, 2020, she slipped and fell on a sidewalk near and adjacent to 225 W. Calafia Ave., San Clemente, CA 92672 (“Subject Location”). (UMF No. 1.)

The County has also shown that it made clear in each and every one of its own verified discovery responses in this matter that it does not own, control, or maintain the Subject Location. (UMF No. 6.)

Further, no discovery response by Plaintiff to any of the discovery requests propounded by the multiple defendants in this action provide facts or evidence to suggest any ownership or control of the Subject Location by the County. (UMF No. 5.)

The County provided Plaintiff with a Statement of Jurisdiction showing that the County had no jurisdiction over the Subject Location. (UMF No. 7.) Particularly, the California Department of Parks and Recreation’s website specifically provides that “San Clemente State Beach is located at 225 W. Calafia Ave, San Clemente, CA 92672 in Orange County . . .” (UMF No. 8.)

Additionally, the Subject Location is one of several addresses associated with Orange County Assessor Parcel Number (“APN”) 060-020-12, which per the certified 2020-2021 Secured Assessment Roll prepared by Orange County Assessor Claude Parrish, shows the State of California as the owner and assessee of APN 060-020-12. (UMF No. 9.)

Lastly, a GIS map obtained from the California State Parks website’s Enterprise GIS Program of the California State Parks, shows the Subject Location clearly within the State property marked on the GIS map. (UMF No. 10.)

The County has therefore met its initial burden to show that it cannot be held liable for a dangerous condition of public property pursuant to Government Code Section 835 et seq. because it does not own, control, or maintain the Subject Location.

The burden shifts to Plaintiff to show that a triable issue of material fact exists. Plaintiff has not opposed the Motion, and therefore not met her burden to show a triable issue of material fact.

As such, the Motion is GRANTED as to the first cause of action for Liability for Dangerous Condition of Public Property Pursuant to Government Code Section 835 et seq.

Second Cause of Action for Vicarious Liability for the Wrongful Acts or Omissions by Public Entity Employees and/or Retention of Unfit employee Pursuant to Government Code Section 815.2:

Government Code Section 815.2, subdivision (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 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.”

Longfellow v. Cty. Of San Luis Obispo (1983) 144 Cal.App.3d 379, 383 states that: “With respect to the plaintiffs’ cause of action pursuant to section 815.2 of the Government Code, the law was settled by Van Kempen v. Hayward Area Park Etc. District (1972) 23 Cal.App.3d 822, that public 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.”

Government Code Section 830, subdivision (c) states: “ ‘Property of a public entity’ and ‘public property’ mean real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the public entity.”

Government Code Sections 830, subdivision (c) and 835 require that the Subject Location be owned and controlled by the County. Therefore, the County cannot be held liable pursuant to Section 815.2 for an alleged act or omission of its employees or property it does not own or have a duty to control or maintain.

As discussed as to the first cause of action, the County has shown that it does not own, control, or maintain the Subject Location. The County has therefore met its initial burden to show that it cannot be held liable for vicarious liability under Section 815.2. The burden shifts to Plaintiff to show that a triable issue of material fact exists. Plaintiff has not opposed the Motion, and therefore not met her burden to show a triable issue of material fact.

As such, the Motion is GRANTED as to the second cause of action for Vicarious Liability for the Wrongful Acts or Omissions by Public Entity Employees and/or Retention of Unfit employee Pursuant to Government Code Section 815.2.

Third Cause of Action for Premises Liability:

As discussed as to the first cause of action, the County has shown that it does not own, control, or maintain the Subject Location. The County has therefore met its initial burden to show that it cannot be held liable for premises liability. The burden shifts to Plaintiff to show that a triable issue of material fact exists. Plaintiff has not opposed the Motion, and therefore not met her burden to show a triable issue of material fact.

As such, the Motion is GRANTED as to the third cause of action for Premises Liability.

Fourth Cause of Action for Negligence:

Government Code Sections 830(c) and 835 require the Subject Location to be owned and controlled by the County, and a County cannot be held liable pursuant to Section 815.2 for an alleged act or omission of its employees or property it does not own or have a duty to control or maintain.

The burden shifts to Plaintiff to show that a triable issue of material fact exists. Plaintiff has not opposed the Motion, and therefore not met her burden to show a triable issue of material fact.

As such, the Motion is GRANTED as to the fourth cause of action for Negligence.

County to give notice.

Future hearing dates

11/18/22 – MSC

12/12/22 – Jury Trial