Judge: Mark C. Kim, Case: 18STCV07682, Date: 2023-02-02 Tentative Ruling



Case Number: 18STCV07682    Hearing Date: February 2, 2023    Dept: S27

1.     Background Facts

Plaintiff, Ursula Carmody filed this action against Defendant, City of Los Angeles for (1) negligence – direct liability, (2) negligence – city vicarious liability/employee, and (3) negligence – city/employee failed to inspect and warn of dangerous condition.  Plaintiff alleges she was a volunteer at Harbor Animal Care Shelter, which is owned by the City.  She alleges the City breached a duty to inspect and evaluate a dog under its control, and failed to warn Plaintiff or others that the animal was dangerous.  Plaintiff alleges Defendant instructed her to groom, bathe, and walk the dog, and the dog knocked her down, attacked her, mauled her, and bit her in her head, face, and armpit. 

 

On 8/24/22, the Court signed the parties’ stipulation to permit Plaintiff to file a First Amended Complaint adding a claim for gross negligence.  The Court does not have any record of Plaintiff ever actually filing the amended complaint.  On 9/16/21, the City filed its operative First Amended Answer, which indicates it is to Plaintiff’s “complaint,” not FAC.  Plaintiff’s original complaint remains operative.  Notably, on 1/03/23, the Court denied Plaintiff’s motion for leave to file a First Amended Complaint. 

 

On 1/18/22, the Court granted the City’s unopposed motion for leave to file a cross-complaint.  On 1/26/22, the City filed a cross-complaint against Plaintiff.  The cross-complaint includes causes of action for indemnification, apportionment of fault, declaratory relief, and breach of contract.  The prayer seeks indemnity, judgment in a proportionate share, a judicial determination for indemnification, and compensatory damages. 

 

2.     Motion for Summary Judgment

  1. Initial Note

Defendant’s caption and notice of motion indicate Defendant is making an alternative motion for summary adjudication.  Defendant’s notice of motion fails to identify the issues to be adjudicated in the alternative.  The Court therefore will treat this as a motion for summary judgment only, and will not consider any alternative request for summary adjudication. 

 

  1. Notice of Errata

Defendant, with its moving papers, included the Declaration of Hall R. Marston.  On 1/20/23, after Plaintiff filed opposition to the motion, Defendant filed a corrected Marston Declaration and a notice of errata.  The notice of errata explains that the original declaration mistakenly attached only the first two pages of Plaintiff’s claim for damages and mistakenly attached the City’s responses to Plaintiff’s RFAs and FROGs, whereas the correct exhibit would have been Plaintiff’s responses to the City’s RFAs and FROGs.

 

Plaintiff objects to the notice of errata, correctly noting that CCP §437c(a)(2) requires notice of the motion and ALL supporting papers to be served at least 75 days prior to the hearing.  The Court has not considered the documents attached to the notice of errata. 

 

  1. Evidentiary Objections

Plaintiff objects to the portions of the Marston Declaration that purport to authenticate the evidence that is not actually attached to the declaration.  The objections are sustained.  Plaintiff also objects to the corresponding facts in the separate statement.  There is no authority for objecting to a fact in the separate statement, and the Court declines to rule on the objections; the Court notes, however, that the subject facts are not established in light of the lack of admissible evidence to support them. 

 

  1. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Code Civ. Proc. §437c(c).)  Where a defendant seeks summary judgment or adjudication, he must show that either “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 that cause of action.”  (Id. at §437c(o)(2).)  A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim.  (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.)  Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.”  (Ibid.) 

 

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.  (Id. at §437c(p).)  A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

 

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.

 

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Id. at §437c(p)(2).)  On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

 

  1. Parties’ Positions

Defendant contends it is entitled to judgment as a matter of law because (a) Plaintiff signed an indemnity waiver and it completely bars her claims, (b) the doctrine of primary assumption of the risk completely bars Plaintiff’s claims, (c) the vicarious liability claims are barred as a matter of law, and (d) the City has a complete defense to the third cause of action. 

 

Plaintiff opposes the motion.  She argues the waiver does not apply to gross negligence, which exists here.  She argues she did not assume the risk complained of by way of this action.  She argues she is not obligated to name the specific employee upon whose negligence she bases her vicarious liability claims.  She argues the City had control over the subject dog and the obligation to identify its behavior problems. 

 

  1. Waiver

Plaintiff concedes she signed a release.  She argues the release does not bar her claims for two reasons.  First, she argues the wavier is ambiguous and should therefore only be construed to bar claims for passive, as opposed to active, negligence.  Second, she contends the release, at most, bars any claim for “ordinary negligence” against Defendant, but contends Defendant’s negligence was gross, rather than ordinary, such that the release does not bar her claims. 

 

i.              Scope of Waiver

The waiver is attached as Exhibit 1 to Exhibit F to the moving Marston Declaration in support of the motion.  The release is very broad and makes clear that Plaintiff is releasing LAAS, including its employees, agents, and volunteers from all liability, claims, etc.  It provides that Plaintiff will not make any claim against, sue, attach the property of, or prosecute LAAS for any personal injury, property damage or death, whatever the cause, in which she suffers or sustains as a result of or in connection with her participation as a volunteer.  It provides that Plaintiff understands the behavior of animals can be unpredictable and they can inflict serious personal injury or death.

 

Plaintiff relies on Burnett v. Chimney Sweep, LLC (2004) 123 Cal.App.4th 1057, 1066-67 and Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 629 to support her position that such a waiver will support release of claims for passive negligence only and not for active negligence. 

 

The agreements in Burnett and Rossmoor were not similar to the one at bar, which specifies that Plaintiff is waiving her right to sue for the exact thing complained of here: being bitten by an animal.  The waiver agreement in this case expressly governs exactly the situation at issue, and therefore controls and binds Plaintiff. 

 

ii.             Gross Negligence

Per City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, a release that purports to bar claims for gross negligence is barred as a matter of law.  Thus, to the extent Plaintiff can show that the negligence at issue constitutes gross negligence, the motion for summary judgment must be denied. 

 

In City of Santa Barbara, the Court held:

 “Ordinary negligence”—an unintentional tort—consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. (See, e.g., Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869 [118 P.2d 465] (Donnelly).)

 

“Gross negligence” long has been defined in California and other jurisdictions as either a “ ‘ “want of even scant care” ’ ” or “ ‘ “an extreme departure from the ordinary standard of conduct.” ’ ”

 

The Court went on to note, “In this respect, we emphasize the importance of maintaining a distinction between ordinary and gross negligence, and of granting summary judgment on the basis of that distinction in appropriate circumstances.

 

Defendant’s argument in this regard is largely twofold.  First, it contends Plaintiff had been instructed not to walk or bathe any dog in excess of 35 pounds, but agreed to walk and bathe Maverick, who weighed approximately 50 pounds, on request of another volunteer.  Second, it contends the crux of Plaintiff’s claims, in her government tort claim, complaint, and responses to discovery, is that Defendant failed to discover Maverick’s vicious nature, which cannot be “gross” negligence as a matter of law. 

 

To the extent the argument concerning Plaintiff’s authority to walk dogs in excess of 35 pounds would be prohibitive of her claim for gross negligence, the Court finds there are triable issues in this regard.  The evidence, set forth in connection with facts 79-81 in the separate statement, is in conflict concerning whether Plaintiff had authority to walk a dog of Maverick’s size.  

 

The more difficult issue is the issue of whether the evidence shows the City failed to discover Maverick was dangerous, or whether it knew Maverick was dangerous and failed to take steps to protect its volunteers from his vicious nature.  The Court, in ruling on the motion, cannot consider the tort claim or the discovery responses, as they were not included with the original moving papers as discussed above.  The Court does, however, find that the complaint itself is premised on allegations that Defendant “failed to discover” Maverick’s vicious tendencies, such that gross negligence is not implicated.  See, for example, ¶10, which alleges, “Defendants…breached the duty…and inadequately and/or negligently evaluated and inspected the Subject Animal.”  The Court therefore finds the City met its moving burden to show it is entitled to summary judgment on all claims as a matter of law because Plaintiff’s complaint sounds in ordinary, rather than gross, negligence.

 

The burden shifts to Plaintiff to raise a triable issue of material fact concerning gross negligence.  Plaintiff, in opposition to the motion, provides evidence that the City had actual knowledge, prior to the date of the incident, that Maverick was dangerous and required a yellow mark on his kennel card.  See additional facts 10-11. 

 

The City, in reply, does not contest Plaintiff’s showing that it, through its employees, had notice that Maverick was dangerous or that its employees failed to place a yellow mark on its kennel card.  It argues, however, that this does not rise to the level of lack of even “scant care,” as required by City of Santa Barbara, supra. 

 

The parties discuss the cases of Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1086-76, Chavez v. 24 Hours Fitness (2015) 238 Cal.App.4th 632, Jimenez v. 24 Hour Fitness (2015) 237 Cal.App.4th 546, and Anderson v. Fitness International, LLC (2016) 4 Cal.App.5th 867 in connection with the issue of whether and when negligence rises to the level of gross. 

 

In Anderson, relied on by the City, the plaintiff sued the fitness center because he slipped and fell in the shower.  He alleged he had given the fitness club numerous warnings that the shower area was slippery and that he had fallen before, but the club failed to fix the tile in the shower area.  The trial court granted summary judgment, finding the complaint sounded in ordinary, not gross, negligence.  The court of appeals affirmed.  The Anderson Court held, “Thus, in cases involving a waiver of liability for future negligence, courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement. (See Eriksson, supra, 191 Cal.App.4th at p. 856, 120 Cal.Rptr.3d 90). Evidence of conduct that evinces an extreme departure from manufacturer's safety directions or an industry standard also could demonstrate gross negligence. (See Jimenez v. 24 Hour Fitness USA, Inc., supra, 237 Cal.App.4th at p. 561, 188 Cal.Rptr.3d 228.) Conversely, conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence. (See DeVito v. State of California (1988) 202 Cal.App.3d 264, 272, 248 Cal.Rptr. 330.)”

 

In Jimenez, the plaintiff sued because the defendant fitness club had not followed manufacturer’s instructions requiring a certain distance between the back of a treadmill and other exercise equipment.  In Chavez, the plaintiff sued for injuries sustained when a cross-trainer machine failed; the plaintiff presented evidence, in opposition to a summary judgment motion, that the subject machine’s back panel was not properly attached and maintenance was not properly performed as required by the applicable owner’s manual.  In Rosencrans, the plaintiff was injured during a motocross event.  The plaintiff alleged the failure to post more than one flagger at the event was grossly negligent.  The trial court granted summary judgment, but the court of appeals reversed, holding the plaintiff’s expert’s testimony that the failure to have a flagger at his assigned post at all times was inexcusable, in blatant disregard for safety, and criminal, falling greatly below the standard of care and practice accepted in the industry.”

 

Jiminez, Chavez, and Rosencrans all have something in common.  They all evidence a practice, on the part of the defendant, that caused the plaintiff’s injuries.  Some sort of deliberate choice not to follow safety protocols and procedures is alleged and shown.  in this case, however, the alleged "gross negligence” comes down to an employee’s failure to place a yellow card on a kennel.  This shows that there was a system in place, but the system, for whatever reason, failed on the date of the incident.  The Court therefore finds summary judgment is warranted because Plaintiff signed a waiver, and there was no gross negligence.  The motion is therefore granted.

 

Defendant is ordered to give notice. 

 

Parties who intend to submit on this tentative must send an email to the court at gdcdepts27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If the parties do not submit on the tentative, they should arrange to appear remotely.