Judge: Joel R Wohlfeil, Case: 37-2021-00036038-CU-PA-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  PI/PD/WD - Auto Summary Judgment / Summary Adjudication (Civil) 37-2021-00036038-CU-PA-CTL JOHNSON VS CITY OF SAN DIEGO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 09/28/2023

The Motion (ROA # 118) of Defendants CITY OF SAN DIEGO ('the City') and ROHULLAH SALEHA ('Officer Saleha') (collectively 'Defendants') for an order for summary judgment or, in the alternative, for summary adjudication for Officer Saleha amd against Plaintiff ALEXIS JOHNSON ('Plaintiff'), is DENIED.

Defendants' Request (ROA # 123) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of no. 3 and the dates only on which nos. 1 and 2 were filed with the Court; otherwise, the Request is DENIED.

Plaintiff's evidentiary objections (ROA # 139) are, except as noted below, OVERRULED.

Defendants' evidentiary objections (ROA # 144) are OVERRULED.

In analyzing Motions for summary judgment, the Court must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. (Sun v. City of Oakland (2008) 166 Cal. App. 4th 1177, 1182, 83; McGarry v. Sax (2008) 158 Cal. App. 4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 289, 294.) 'A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.' (Code Civ. Proc. 437c(f)(1).) In ruling on a summary judgment / adjudication Motion, the evidence relied upon in supporting or opposing a Motion for summary judgment must be admissible. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal. 5th 536, 542.) The Court must 'liberally construe' the opposing party's evidence and 'strictly scrutinize' the moving party's evidence, and 'resolve any evidentiary doubts or ambiguities' in favor of the opposing party.

(McDonald v. Antelope Valley Community College District (2008) 45 Cal. 4th 88, 96, 97.) Similarly, 'any doubts as to the propriety of granting a summary judgment motion should be resolved in favor of the party opposing the motion.' (Reid v. Google, Inc. (2010) 50 Cal. 4th 512, 535.) In this case, Defendants' separate statement of undisputed material facts (SSUMF) sets forth 39 facts, of Calendar No.: Event ID:  TENTATIVE RULINGS

3012032  12 CASE NUMBER: CASE TITLE:  JOHNSON VS CITY OF SAN DIEGO [IMAGED]  37-2021-00036038-CU-PA-CTL which Plaintiff has submitted objections or disputed 25 of them. (ROA No. 138.) The Motion presents three arguments: (1) Officer Saleha has immunity under Vehicle Code section 17004; (2) Officer Saleha was not negligent; and (3) the City cannot be liable for negligence and if Officer Saleha is immune, the City is immune.

Officer Saleha's Immunity Under Vehicle Code section 17004 Defendants argue that Rohullah Saleha has immunity under Vehicle Code section 17004 because the Incident occurred while he was operating a patrol vehicle while responding to a disturbance call.

(SSUMF Nos. 1 - 3, 35.) The pertinent portion of California Vehicle Code section 17004 provides that a public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from: (1) the operation; (2) in the line of duty; (3) of an authorized emergency vehicle: (4) while responding to an emergency call. A police officer's does not lose Immunity under section 17004 due to the officer's own negligence or intentional conduct. (Cruz v. Briseno (2000) 22 Cal. 4th 568, 572.) It is undisputed that when the Incident occurred, Saleha was on duty as a police officer and operating a patrol car. (SSUMF Nos. 1 - 3.) The element that is disputed is whether Saleha was responding to a 'emergency call' for the purpose of determining immunity under section 17004.

Plaintiff's opposition argues that there is a dispute of material fact whether Officer Saleha was responding to an emergency call at the time of the Incident due to Defendants' Motion for Summary Judgment or, in the Alternative, Summary Adjudication's ('Motion') reliance upon the deposition transcript of Officer Saleha, which includes testimony that Officer Saleha did not recall the nature of the call and could not recall whether it was an 'emergency call.' (Plaintiff's Objection to Defendants' Separate Statement of Facts, ROA # 139 ('OBJ. SSUMF'), Nos., 2, 3, 35.) Plaintiff further argues that additional testimony of Officer Saleha relied upon by Defendants is inadmissible because it relates to a document not part of the record and lacking foundation. (OBJ. SSUMF No. 35.) Officer Saleha's admissible testimony undermines Defendants' claim that this was an 'emergency call.' Officer Saleha's testimony relating to the contents of a document is vague and does not establish a proper basis for its admissibility as evidence. Since evidence in support of a Motion for summary judgment must be admissible and any doubts must be resolved in favor of the party opposing the Motion, Defendants have not met their burden of establishing that Officer Saleha was responding to an emergency call at the time of the Incident to support immunity under Vehicle Code section 17004.

Plaintiff further objected to the Defendants' submission of excerpts of the deposition transcript of Parada K. Ornelas in support of the Motion, which were submitted by Defendants in their reply to establish that Officer Saleha was responding to an 'emergency call.' (ROA # 143) The Court, in its discretion, can choose whether or not to consider evidence not included in the separate statement, but if it chooses to consider the evidence it must take into account the opposing party's due process rights. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal. App. 4th 308, 316.

This requires that the opposing party have notice and an opportunity to respond to new materials.

(Plenger v. Alza Corp. (1992) 11 Cal. App. 4th 349, 362, fn. 8.) Considering that the deposition transcript of Parada K. Ornelas was not included in Defendant's separate statement, Plaintiff has objected to this belated evidence, and Defendants have not provided a justification for failing to provide the evidence in the original separate statement, the Court declines to Calendar No.: Event ID:  TENTATIVE RULINGS

3012032  12 CASE NUMBER: CASE TITLE:  JOHNSON VS CITY OF SAN DIEGO [IMAGED]  37-2021-00036038-CU-PA-CTL consider such evidence in ruling on the Motion.

As such, Defendants' Motion for summary adjudication as to Officer Saleha's immunity under Vehicle Code section 17004 is DENIED.

Officer Salehi's Negligence and City's Immunity Defendants argue that: (1) Officer Salehi was not negligent; (2) that Government Code section 815.2 precludes the City from being held vicariously liable for Plaintiff's injuries; (3) the City cannot be held directly liable under Civil Code section 1714; and (4) since Officer Salehi is immune, the City is also immune.

'[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714.' (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal. 4th 1175, 1183.) Government Code section 815.2 further provides that '[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.' 'Vehicle Code section 17001 makes a public entity liable for its employee's negligence in the operation of a motor vehicle.' (Brummett v. County of Sacramento (1978) 21 Cal. 3d 880, 883.) Accordingly, a public entity may be liable under section 17001 for its employee's negligence, even if the actual employe is immune under section 17004. (Id. at 888.) Thus, if Officer Salehi was negligent, the City may be liable, regardless of whether he has immunity.

A cause of action for negligence requires: (1) the existence of a duty; (2) a breach of that duty; (3) injury to Plaintiff caused by Defendant's breach; and (4) actual damages. (Romero v. Los Angeles Rams (2023) 91 Cal. App. 5th 562, 567.) 'Section 1714 establishes the default rule that each person has a duty 'to exercise, in his or her activities, reasonable care for the safety of others.' (Hacala v. Bird Rides, Inc. (2023) 90 Cal. App. 5th 292, 310 [internal citations omitted].) Accordingly, a driver of an automobile has a duty 'to act as a reasonably prudent person under the same or similar circumstances.' (Watkins v. Ohman (1967) 251 Cal. App. 2d 501, 503.) In opposition to Defendants' evidence that Officer Salehi was not negligent (UMF Nos. 4 - 6, 37 - 39), Plaintiff submitted evidence that Officer Saleha may have caused and / or contributed to the Incident and breached the duty owed to Plaintiff, including by failing to use his turn signal and failing to observe the Plaintiff while making his turn. (Beels Decl., ¶¶ 7, 10 and 11; Johnson Decl., ¶¶ 3 and 4.) Since a public entity is liable for damages and injuries arising from its employee's negligent operation of a vehicle, even if the employee is immune, Plaintiff has met her burden of establishing a triable, material issue of fact regarding Officer Saleha's alleged negligence and the City's liability for Plaintiff's injuries.

Accordingly, Defendants Motion for summary adjudication as to the Officer Saleha's negligence and the City's liability for such negligence is DENIED.

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