Judge: Kevin C. Brazile, Case: BC718611, Date: 2023-02-07 Tentative Ruling

Hearing Date: February 7, 2023

Case Name: Running, et al. v. Covina Irrigating Company, et al.

Case No.: BC623542

Matter: Motion to Strike 

Moving Party: Plaintiffs Patricia Beecham, personal rep. of The Estate of Praxedes E. 

Running and Patricia Beecham and Leia Bowers, co-trustees of the 

Praxedes E. Running Trust

 Responding Party: Defendants City of Azusa and Azusa Valley Water Company 

Notice: OK

Ruling: The Motion to Strike is granted.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

On March 20, 2017, Plaintiffs Praxedes E. Running and the Praxedes E. Running Trust filed the operative Third Amended Complaint against Covina Irrigating Company (“CICO”), City of Azusa (“City”), Azusa Valley Water Company (“AVWC”), San Gabriel River Water Committee (“SGRWC”), George Morrow, Fran Delach, Chet Anderson, William McIntyre, Andrew McIntyre, and Canyon Water Company arising out of Defendants’ alleged diversion of water from an open canal on Plaintiffs’ property. 

Plaintiffs now seek to strike portions of the third motion for summary adjudication filed by the City and AVWC.  Specifically, Plaintiffs seek to strike the issues as to (1) Defendants not having a certain duty to maintain the subject canal and (2) there being no elder abuse claim because there is no evidence that an employee, agent, or independent contractor of Defendants committed elder abuse.  

Code Civ. Proc. § 437c(f)(2) states in relevant part, “A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”

Defendants’ first issue as to duty is inappropriate in light of the Court’s prior finding that Defendants do in fact have a duty to maintain the subject canal.  Defendants argue that there is new evidence that they cannot legally maintain the canal, but this actually relates to their defense of impossibility also asserted in the summary adjudication motion, which Plaintiffs do not seek to strike.  There is no authority for the proposition that affirmative defenses can be transformed into whittled down duties upon which there can be a continuum of summary adjudication motions.  

As to elder abuse, Defendants contend there is new evidence showing that Plaintiffs  specifically admit that they do not claim an employee, agent, or independent contractor acted on behalf of Defendants.  

Plaintiffs contend that (1) they have never argued vicarious liability, but rather that “Defendants could be directly liable for elder abuse by acting through and with SGRWC and assisting its other members, such as CICO, in taking Plaintiffs’ water” and (2) this Court and the Court of Appeal already found triable issues for the elder abuse claim under Plaintiffs’ theories.  

The elder abuse issue is also inappropriate because even if liability cannot be based on the acts of an employee or agent of Defendants, this does not address the Court’s prior ruling that “The City failed to carry its initial burden as to this claim insofar as it is based on the City's alleged authorization of Plaintiff's neighbor to enter onto her property and place drainage and sewer pipes, which allegedly caused Plaintiff's property to subside. Defendants did not establish immunity or any other substantive defect in this claim. Defendants additionally did not negate their liability for assisting in CICO's plugging of the tunnel, which is a significant focus of the TAC.”  That is, Defendants again fail to carry their burden to show that there is no theory upon which the elder abuse claim can proceed.

In sum, the Motion to Strike is granted.  The Request for Judicial Notice is granted.

Moving party to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.