Judge Michelle C. Kim, Case Number: 21STCV39225, Date: 2023-05-10 Tentative Ruling

Plaintiff Andre Mosley (“Plaintiff”) filed this action against Defendants City of Los Angeles (the “City”), L.A. World Airports, Board of Airport Commissioners, LAX for injuries Plaintiff sustained when “Plaintiff was loading luggage when his foot fell into and twisted between an open gap in the street.” (Compl. at pp. 4, 5.) Plaintiff alleges the incident occurred on June 10, 2021. The complaint alleges causes of action for general negligence and premises liability against defendants. The premises liability claim includes a count for dangerous condition of public property.

Defendant the City now moves for summary judgment as to the complaint. Plaintiff opposes the motion, and Defendant filed a reply.

The City argues it is entitled to summary judgment because Plaintiff did not comply with the California Tort Claims Act prior to filing this action against the City. In particular, the City asserts that Plaintiff did not file a claim for damages with the City prior to the commencement of the action, which Plaintiff admitted in discovery.

Plaintiff asserts that on August 16, 2021, a claim form was mailed to the Claims Management Branch of the TSA, and that on November 16, 2021, a letter acknowledging receipt of the claim was received from Los Angeles World Airports. Plaintiff argues that a claim was thus filed within the six-month timeframe required by the Act. Further, Plaintiff asserts that the “LAX Official Site” states claims should be submitted to the TSA. (Opp. at p. 5:17-18.) Lastly, Plaintiff contends there are triable issues of fact concerning whether the City’s property was in a dangerous condition at the time of the incident.

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).) 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.4^th 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.)

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.)

Government Code § 945.5 provides, “No suit for damages may be maintained against a public entity unless the claim has been presented to it.”

California Government Code § 911.2(a) states, “[a] claim relating to a cause of action for death or for injury to person or to personal property or growing crops shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” Government Code § 945.6 provides in relevant part:

(e) Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (commencing with Section 900) and Chapter 2 (commencing with Section 910) of Part 3 of this division must be commenced:

(e) If written notice is given in accordance with Section 913, not later than six months after the date such notice is personally delivered or deposited in the mail.

“A public entity cannot be sued for tort unless (1) a timely written claim has previously been presented to the governmental entity, (2) any late claim has been presented to the public entity and been excused by it or the court, or (3) conditions described by Government Code section 946.4 … have been met.” (Greyhound Lines, Inc. v. County of Santa Clara (1986) 187 Cal.App.3d 480, 483.)

“The failure to timely present a proper claim … bars a plaintiff from filing a lawsuit against that entity. [Citation.]” (Gong v. City of Rosemead (2014) 226 Cal.App.4^th 363, 374.) Thus, “[e]ven if the public entity has actual knowledge of facts that might support a claim, the claims statutes still must be satisfied. [Citation.]” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4^th 983, 990.) “ ‘The filing of a claim is a condition precedent to the maintenance of any cause of action against the public entity and is therefore an element that a plaintiff is required to prove in order to prevail.’ [Citations.]” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990.) A claim must “satisfy the express ... language of the statute.” (Id. at 987.)

“Even if the public entity has actual knowledge of facts that might support a claim, the claims statutes still must be satisfied. [Citation.]” (DiCampli-Mintz, supra, 55 Cal.4th at 990.) Moreover, “[i]f an appropriate public employee or board never receives the claim, an undelivered or misdirected claim fails to comply with the statute. [Citation.] This straightforward construction honors the statutory language and is consistent with the purpose of the claims statutes.” (Id. at 992-93 [footnote omitted].)

Here, Plaintiff alleges that the subject incident occurred on June 10, 2021, at Terminal 5 of the Los Angeles International Airport. (Mot. Undisputed Materials Facts (“UMF”) 1-2.) Plaintiff did not file a claim for damages with the City prior to the commencement of this lawsuit. (UMF 3.) The City submits a declaration from its employee, Tamisha Walters, attesting that the City has no record of a claim for damages being filed prior to Plaintiff filing his complaint in this matter. (Mot. Walters Decl. ¶¶ 3-5.) Walters further asserts that the City was served with the complaint on November 2, 2021, and that on November 16, 2021, a letter was forwarded to Plaintiff’s counsel advising him of the employee handling this matter. (Id. at ¶ 6.) Moreover, Plaintiff provides that in response to written discovery served on Plaintiff concerning Plaintiff’s allegation he complied with the applicable claims statutes, Plaintiff provided a claim filed with Transportation Security Administration (“TSA”). (Mot. Charboneau Decl. ¶¶ 3-4, Exh. A.)

The foregoing is sufficient to meet the City’s moving burden to show that Plaintiff did not file a claim for damages as required by the Act prior to filing this action against the City. The burden thus shifts to Plaintiff to raise a triable issue of material fact in this regard.

Plaintiff, in opposition, fails to submit a separate statement responding to each of the City’s material facts asserted in its separate statement. (CCP § 437c(b)(3) [failure to comply with requirement to include separate statement with opposition papers “may constitute a sufficient ground, in the court's discretion, for granting the motion.”].) Furthermore, Plaintiff does not submit any evidence with the opposition. Plaintiff submits only a memorandum of points and authorities in opposition to the motion, which is not evidence. (See Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173, [“Argument of counsel is not evidence.”]; see also McAlexander v. Siskiyou Joint Community College (1990) 222 Cal.App.3d 768, 774 [“the party opposing the motion must submit competent evidence in opposition showing sufficient facts to substantiate its allegations.”].) Therefore, Plaintiff fails to substantiate his argument that he complied with the claims presentation requirement of the Act by mailing the claim to the TSA. Plaintiff does not otherwise dispute failing to serve a claim on the City.

Based on the foregoing, Plaintiff fails to raise a triable issue of material fact. (Mot. UMF 3.)

Hon. Michelle C. Kim

Judge of the Superior Court