Judge Michael D. Washington, Case Number: 37-2023-00002021-CU-PO-NC, Date: 2024-05-24 Tentative Ruling

Judge: Michael D. Washington, Case: 37-2023-00002021-CU-PO-NC, Date: 2024-05-24 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - May 22, 2024

05/24/2024 01:30:00 PM N-31 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Michael D Washington

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2023-00002021-CU-PO-NC TORRES VS COUNTY OF SAN DIEGO [MAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 02/08/2024

The Motion for Summary Judgment/Adjudication brought by defendant County of San Diego (the County) is DENIED.

The Clerk is directed to file, as a separate and standalone document, the First Amended Complaint attached as 'Exhibit A' to the Stipulation. (ROA 48, Ex. A.) Said filing shall be effective on a nunc pro tunc basis back to the February 7, 2024 date of the Order Granting Joint Stipulation Regarding Leave to File a First Amended Complaint. (ROA 49.) This is the operative pleading and the pleading that the Court interprets as being targeted via the instant Motion for Summary Judgment/Adjudication.

Request for Judicial Notice The Request for Judicial Notice brought by the County is GRANTED pursuant to Evidence Code § 451, et seq.

Objections to Evidence The Objections to Evidence brought by the County are disposed as follows: Objection A: Overruled Objection B: Overruled Objection C: Overruled Objection D: Overruled Factual Background This is a premises liability case regarding injury that occurred from falling into an uncovered manhole.

The manhole at issue was located in the City of Vista (which is also a defendant in this action – hereinafter, the City). There is evidence that the County does inspections at regular intervals of about once per week, but those inspections consist of an employee driving by in a truck. There is evidence indicating that a County employee or agent conducted an inspection of the manhole at issue on January 26, 2022, though that individual cannot be identified. The injury at issue in this case occurred about four days later on January 30, 2022.

It appears to be undisputed that there was no work being performed that would involve that particular manhole from December 3, 2021 to the time of the injury on January 30, 2022. It also appears to be undisputed that the County did not receive any actual reports of the manhole having its lid missing.

However, there is also evidence that some manholes within the County have a bolt and/or latch attachment that allows it to be locked or secured. The manhole at issue in this case could be altered or Calendar No.: Event ID: TENTATIVE RULINGS

3111814 CASE NUMBER: CASE TITLE: TORRES VS COUNTY OF SAN DIEGO [MAGED] 37-2023-00002021-CU-PO-NC moved with a finger and a little bit of strength.

Merits of Motion The County argues that it did not create the dangerous condition of the manhole being out of place. It further argues that it did not have actual or constructive knowledge of the dangerous condition.

As to the existence of a dangerous condition, Plaintiff responds that it is not necessary to focus on just the issue of the manhole covering being removed – it is also appropriate to consider the style or type of manhole covering that was used. In other words, while it creates danger that the manhole covering was off the manhole when the incident occurred, to the extent that it may not have been a County employee who removed the manhole covering and the County did not become aware of the removal, Plaintiff's position is that the County should have been using a bolted or lockable manhole covering to prevent third parties from coming along and moving the manhole covering.

As to constructive knowledge of the dangerous condition, Plaintiff argues that the County's inspection methods (an employee driving by once per week in a truck with tinted windows) was inadequate.

Both of these questions are fact-intensive and thus require a trier of fact, and, as such, summary judgment is inappropriate.

The County also makes a passing reference to what it describes as a 'failure' by Plaintiff to address the negligence cause of action. The negligence argument that the County is claiming to have made is not entirely clear. The Court is well aware that a public entity is not liable to an injured party for premises liability under a common law negligence theory. (See 5 Witkin, Summary of California Law (11th ed., 2023) Torts § 267, citing Government Code § 815(a) (additional citations omitted).) Though it is also noteworthy that a public entity can be vicariously liable on a negligence theory for acts done by its employees. (See 5 Witkin, Summary of California Law (11th ed., 2023) Torts § 283, citing Government Code § 815.2(a) (additional citations omitted).) Here, there does not appear to be a cause of action alleged against any agents or employees, but examining that issue requires some unpacking.

Specifically, it is not entirely clear what the operative pleading document is that frames Plaintiff's claims.

Plaintiff filed an original Complaint on January 17, 2023. (ROA 1.) However, Plaintiff filed a Motion for Leave to Amend on January 22, 2024. (ROA 45.) That motion never came on-calendar for hearing because the parties stipulated to allowing an amendment. (ROAs 48-49.) The Court signed an order granting Plaintiff leave to file a First Amended Complaint on February 7, 2024, but Plaintiff never actually filed a formal First Amended Complaint. (ROA 49.) Looking back to Plaintiff's Motion for Leave to Amend, the Notice of Motion specifically states that one of the reasons Plaintiff was seeking leave to amend was as follows: The original complaint appears to allege common law Negligence and Premises Liability against defendant County of San Diego, a public entity. The First Amended Complaint removed general negligence cause of actions, makes it clear that premises cause of action is brought pursuant to statutory violations under Government code section 835 and 815.2. Furthermore, additional language is added explaining the date a claim was opened with the county of San Diego, a public entity, and the date the claim was denied as required by Government Code 911.2. (ROA 45, p. 2:15-21.) The County's Motion for Summary Judgment/Adjudication specifically indicates that 'This Motion will be based on [the moving papers and supporting documents]; the complete court file on record herein, including, but not limited to, Plaintiff's First Amended Complaint for Damages... (ROA 50, p. 2:8-12.) Thus, the County seems to accept Plaintiff's First Amended Complaint as the operative pleading even though it has not technically been filed as a pleading (it has, notably, been filed as an exhibit to the Stipulation by which the parties agreed to permit the amending of the operative pleading).

Ultimately, the Court does not find that the 'negligence' argument referenced in the Reply was even sufficiently made in the moving papers to have warranted an opposition response. While it appears that Calendar No.: Event ID: TENTATIVE RULINGS

3111814 CASE NUMBER: CASE TITLE: TORRES VS COUNTY OF SAN DIEGO [MAGED] 37-2023-00002021-CU-PO-NC a reference was made to a negligence cause of action in the Notice of Motion (ROA 50, p. 2:2-4), the points and authorities do not specifically reference this legal issue sufficiently. Nonetheless, as it is a matter of black letter law that negligence claims for premises liability cannot be brought against governmental agencies, the point is worth clarifying at present since the pleadings clear it up even without addressing whether the burden was met in the moving papers. To that end, the Court directs the Clerk to file, as a separate and standalone document, the First Amended Complaint attached as 'Exhibit A' to the Stipulation. (ROA 48, Ex. A.) Said filing shall be effective on a nunc pro tunc basis back to the February 7, 2024 date of the Order Granting Joint Stipulation Regarding Leave to File a First Amended Complaint. (ROA 49.) By way of such filing clearing up the scope of the pleadings, it is clear that there is no negligence claim being alleged within the four corners of the operative pleadings such that the request to summarily adjudicate such a claim is moot.

Unless the ruling(s) above indicate that an appearance is necessary, parties who wish to submit, who are satisfied with the above tentative ruling(s), and/or who do not otherwise wish to argue the motion(s) are encouraged to give notice to the Court and each other of their intention not to appear.

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