Judge: Stephen Morgan, Case: 20AVCV00742, Date: 2023-12-05 Tentative Ruling
Department A14 Tentative Rulings
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Case Number: 20AVCV00742 Hearing Date: December 5, 2023 Dept: A14
Background
This is a premises liability
action. Plaintiff Eliyah Berdine, a minor by and through his Guardian Ad Litem,
Gloria Berdine (“Plaintiff”), alleges that, on October 22, 2019, Defendant
Palmdale School District (“PSD”) had control over Plaintiff and that PSD failed
to provide adequate supervision necessary to fulfill their duty of care in
relation to Plaintiff, resulting in Plaintiff’s physical injury suffered when
falling from a piece of playground equipment.
Multiple pleadings were filed,
starting with the Complaint on October 13, 2020. The operative pleading is the
Third Amended Complaint (“TAC”) filed on June 03, 2021, alleging one (1) cause
of action for: negligent supervision.
The Court notes that there are
two other defendants in this action: (1) City of Palmdale, and (2) County of
Los Angeles (“COLA”). While COLA was dismissed pursuant to a stipulation on
April 12, 2021, Plaintiff has listed COLA as a defendant in the TAC, filed
after the dismissal. At this time, COLA has not been served with the TAC.
On December 29, 2022, PSD filed
its Motion for Summary Judgment as to Plaintiff’s TAC.
On July 24, 2023, This Court
ordered a continuance pursuant to a stipulation by both parties to amend the
hearing date for PSD’s Motion for Summary Judgment to December 5th, 2023.
On November 01, 2023, Plaintiff
dismissed City of Palmdale from the case without prejudice.
On November 21, 2023, Plaintiff
filed his Opposition to PSD’s Motion for Summary Judgment.
On November 28, 2023, PSD filed
an Ex Parte Application to Continue the Motion for Summary Judgment (“Ex Parte
Application”). On the same day, Plaintiff filed his Opposition.
On November 30, 2023, the Court
held the hearing on the Ex Parte Application. The Court took the matter under
submission and, on the same day, issued a ruling denying the Ex Parte
Application. The Court, understanding that November 30, 2023 was the date the
Reply was due under Cal. Code Civ. Proc.§ 437c(b)(4), extended the deadline to
file the Reply to December 4, 2023 at 12:00 p.m. (See 11/30/2023 Minute Order.)
On December 04, 2023, PSD filed
its Reply to Plaintiff’s Opposition. However, it did not adhere to the Court’s
deadline. Rather, PSD filed its Reply brief with corresponding counsel’s
declaration at 12:13 pm and a Response to Plaintiff’s Statement of Additional
Facts, with objections to almost the entirety of Plaintiff’s Statement of
Additional Facts, at 12:24 pm. “No paper may be rejected for filing on the
ground that it was untimely submitted for filing. If the court, in its
discretion, refuses to consider a late filed paper, the minutes or order must
so indicate.” (Cal. Rules of Court, 3.1300(d).) The Court, in its discretion, declines
to consider PSD’s untimely Reply and Response to Plaintiff’s Statement of
Additional Facts.
Legal Standard
Standard for Summary Judgment
– The function of a motion for summary judgment or adjudication is to allow a
determination as to whether an opposing party cannot show evidentiary support
for a pleading or claim and to enable an order of summary dismissal without the
need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th
826, 843.) Cal. Code Civ. Proc.¿§437c(c) “requires the trial judge to grant
summary judgment if all the evidence submitted, and ‘all inferences reasonably
deducible from the evidence’ and uncontradicted by other inferences or
evidence, 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.”¿ (Adler v.
Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of
the pleadings in a motion for summary judgment is to delimit the scope of the
issues; the function of the affidavits or declarations is to disclose whether
there is any triable issue of fact within the issues delimited by the
pleadings.”¿ (Juge¿v. County of Sacramento¿(1993) 12 Cal.App.4th 59, 67,
citing¿FPI Development, Inc. v. Nakashima¿(1991) 231 Cal.App.3d 367,
381-382.)¿¿¿¿¿¿
As to each claim as framed by the complaint, the
party moving for summary judgment must satisfy the initial burden of proof by
presenting facts to negate an essential element, or to establish a defense.
(Cal.¿Code Civ.¿Proc.¿§437c(p)(2);¿Scalf¿v. D. B. Log Homes, Inc.¿(2005)
128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support
of the party opposing summary judgment and resolve doubts concerning the
evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006)
39 Cal.4th 384, 389.)¿¿¿¿¿¿
Once the defendant has met that burden, the
burden shifts to the opposing party to show that a triable issue of one or more
material facts exists as to that cause of action or a defense thereto. To
establish a triable issue of material fact, the party opposing the motion must
produce substantial responsive evidence. (Sangster v.¿Paetkau¿(1998) 68
Cal.App.4th 151, 166.)¿¿¿¿¿
A defendant's motion for summary judgment or
summary adjudication “necessarily includes a test of the sufficiency of the
complaint” and its legal effect is the same as a demurrer or motion for
judgment on the pleadings. (See American Airlines, Inc. v.
County of San Mateo (1996) 12 Cal.4th 1110, 1118; Prue v.
Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1375-1376,
1384; Slaughter v. Legal Process & Courier Service (1984)
162 Cal.App.3d 1236, 1244.)
When a motion for summary judgment is used to
test whether the complaint states a cause of action, the court must accept the
allegations of the complaint as true. It cannot consider facts alleged in
opposing declarations. (American Airlines v. County of San Mateo, supra,
12 Cal.4th at 1118).
The function of the pleadings
in a motion for summary judgment is to delimit the scope of the issues; the
function of the affidavits or declarations is to disclose whether there is any
triable issue of fact within the issues delimited by the pleadings. (FPI
Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Since
the pleadings delimit the issues, summary judgment cannot be granted or denied
on grounds not raised by the pleadings. (Bostrom v. County of San Bernardino
(1995) 35 Cal.App.4th 1654, 1663.)
Analysis
Evidentiary Objections –
Plaintiff’s Objection No. 1
[Decl. Lisa Fowler ¶ 5, lines 17-18 “There were a total of 35 students who
attended recess on the date of the accident, with six adult supervisors.”] –
GRANTED due to lack of personal knowledge. (See Cal. Evid. Code § 702(a).)
Plaintiff’s Objection No. 2
[Decl. Lisa Fowler ¶ 6, lines 20-24 “On the date of the accident, teacher
assistants, Mayra Sanchez and Aleyda Perez Trujillo, were in Zone 1 supervising
the students. Teacher Karla Cascareno was supervising Zone 2. Teacher Assistant,
Erlyn Gudino, was supervising Zone 3. Teacher Assistant, Maria Langarica, was
supervising Zone 4, and teacher Rebeka Hormozian, was supervising Zone 5.”] –
GRANTED due to lack of personal knowledge. (See Cal. Evid. Code § 702(a).)
Plaintiff’s Objection No. 3
[Decl. Lisa Fowler ¶ 6, lines 24-26, Exhibit G (Zoning Diagram)] – GRANTED.
While the zoning diagram appears to be a business record under Cal. Evid. Code
§ 1271, there is neither testimony as to the mode of its preparation nor
sources of information and time of preparation to indicate the document’s
trustworthiness.
Plaintiff’s Objection No. 4
[Decl. Lisa Fowler ¶ 7 “Following his fall, I am informed and believe that
Eliyah was attended to by staff members who were present in the Zone 1, as well
as by his teacher and the lead instructor. Griselda Morones. Plaintiff’s mother
was contacted, and assistance was provided by the health staff at Head Start.”]
– GRANTED due to lack of personal knowledge. (See Cal. Evid. Code § 702(a).)
Plaintiff’s Objection No. 5 [Exh.
G (Zoning Diagram)] – GRANTED. (See Plaintiff’s Objection No. 3 for reasoning.)
Discussion – PSD’s
primary argument is that there is no triable issue of fact presented in
Plaintiff’s TAC. Specifically, PSD asserts that plaintiff does not prove, and
cannot prove, that PSD “breached its duty to supervise or that any alleged
breach of its duty to supervise was a substantial factor in causing Plaintiff’s
injury because there was no opportunity for intervention.” (Def. Motion for
Summary Judgment, 2:6-8, citing Cal. Code Civ. Proc. § 437c(p)(2)). PSD states
that “[n]o triable issue of material fact exists when undisputed facts leave no
room for a reasonable difference of opinion.” (Def. Motion for Summary Judgment,
3:19-20; citing Atlantic Mutual Ins. Co., v. J. Lamb., Inc. (2002) 100
Cal.App.4th 1017). This sentiment is echoed in additional California precedent
which PSD relies upon: “The California Supreme Court has also noted, ‘the
purpose of the 1992 and 1993 amendments to the summary judgment statute was to
liberalize the granting of motions for summary judgment. It is no longer called
a disfavored remedy. It has been described as having a salutary effect, ridding
the system, on an expeditious and efficient basis, of cases lacking any merit.”
(Def. Motion for Summary Judgment, 3:22-26; citing Bozzi v. Nordstrom, Inc.
(2010) 186 Cal.App.4th 755, 760-761, relying upon Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 854).
PSD asserts that judicial
precedent supports a liberal examination of its duty to supervise the
playground during the recess event in which Plaintiff was injured. PSD states
that Plaintiff’s injury was “sudden, unforeseen, and unexpected.” (Def. Motion
for Summary Judgment, 1:16). PSD also provides statements of allegedly
undisputed material facts (“UMFs”) including, but not limited to, the
following:
PSD UMF No. 6: That
Plaintiff had played on the spiral climber before the accident but had never
been injured.
PSD UMF No. 7: That
Plaintiff testified that he had played on a similar one at a park near his
grandmother’s house.
PSD UMF No. 9: That
Plaintiff took his foot off the curved part of the pole to spin down to the
ground when he lost his grip and fell.
PSD UMF No. 26: That
there were six known adult employees on the playground on the day and time of
Plaintiff’s injury.
(Def. Separate Statement of UMF, 4:3, 10, 29; 8:15).
PSD points out that California
schools have, for decades, held a duty to supervise students on school property
and that the duty to supervise imposes upon school employees a standard of care
in which employees “carrying out this duty to supervise” are expected to act
with a “degree of care ‘which a person of ordinary prudence, charged with
[comparable] duties, would exercise under the same circumstances’.” (Dailey
v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747 (“Dailey”)
[superseded by statute regarding liability when pupils not on school property],
citing Pirkle v. Oakdale Union etc. School Dist. (1953) 40 Cal.2d 207,
210 [253 P.2d 1]; Bellman v. San Francisco High School Dist. (1938) 11
Cal.2d 576, 582 [81 P.2d 894]). Many other case examples selected by PSD opine
at length about the limits of this duty but rely heavily upon the concept that
“a school cannot and should not be an insurer of the safety of students[…]when
it has exercised ordinary prudence and due care appropriate to the
circumstances.” (Brownell v. Los Angeles Unified School Dist. (1992) 4
Cal.App.4th 787, 796). PSD again relies upon the Dailey court in citing
that “either a total lack of supervision (Forgnone v. Salvador Union
Elementary School Dist. (1940) 41 Cal.App.2d 423 [106 P.2d 932]) or
ineffective supervision (Buzzard v. East Lake School Dist. (1939) 34
Cal.App.2d 316 [93 P.2d 233]) may constitute a lack of ordinary care on the
part of those responsible for student supervision.” (Dailey, supra,2
Cal.3d at747).
PSD states that “[w]hether a
school district or public employee exercised reasonable care is often dependent
on the presence of supervisory personnel in the area where an accident took
place.” (Def. Motion for Summary Judgment, 6:12-14). PSD provides the examples
of the Dailey court and of Wright v. City of San Bernardino School
Dist. (1953) 121 Cal.App.2d 342 (“Wright”) in which the facts
presented to the courts were an initially playful fight among students (see Dailey)
or an incident during an unsupervised class period of high-school students who
were all experienced with the athletic pursuits being enjoyed (see Wright).
PSD then states that negligence was not found in an instance where “the
incident occurred quickly and without indication” that an incident would occur.
(Skinner v. Vacaville Unified Sch. Dist. (1995) 37 Cal.App.4th 31)
despite the proximity of the supervising teacher.
“A defendant or cross-defendant
has met his or her burden of showing that a cause of action has no merit if the
party has shown that one or more elements of the cause of action…cannot be
established” and that “once the defendant or cross-defendant has met that
burden, the burden shifts to the plaintiff or cross-complainant to show that a
triable issue of…material fact exists as to the cause of action or a defense
thereto.” (Cal. Code Civ. Proc. § 437c(p)(2)). The issue at hand, then,
is whether PSD has shown that there is no triable issue of fact present in the
Plaintiff’s pleadings. PSD states that “[L]ike Skinner, the evidence
demonstrates that the [Early Childhood Education (“ECE”)] play area contained
specific zones of play where adults were assigned to monitor and supervise the
limited number of children who were playing during recess. There were six staff
members who were present and supervising on the date of the accident.” (Def.
Motion for Summary Judgment, 7:11-14). PSD goes on to state that “Plaintiff
likewise can produce no facts or witnesses to support the claim of negligent
supervision.” (Def. Motion for Summary Judgment, 7:19-20). PSD’s selection of
case law is sound, and PSD makes a valid argument regarding the liberal nature
with which summary judgment is to be granted. Notably, PSD’s reference to Bozzi.
V. Nordstrom, Inc. (2010) 186 Cal.App.4th 765 supersedes Plaintiff’s
reliance upon Suarez v. Pacific Northstar Mechanical, Inc. (2009) 180
Cal.App.4th 430 in arguing for a stricter approach to the granting of summary
judgment.
However, liberal application or
not, PSD has failed to provide any sufficient evidence that it has met its initial
burden in such a manner as to shift the burden onto the Plaintiff. Much of the
evidence relied upon by PSD has been objected to by Plaintiff in his opposition
filings, and for the reasons detailed above those objections are granted. With
the granting of those evidentiary objections, PSD has little support based on
the facts as they are available today to assert that they have demonstrably met
their burden of supervision regarding Plaintiff.
The majority of PSD’s evidentiary
reliance is based on the Declaration of Lisa Fowler (“Fowler”). Fowler is an
assistant administrator who admits, in deposition testimony under the penalty
of perjury to (1) not being assigned to supervise the location at which
Plaintiff was injured, (2) not being present at the time of the incident, and
(3) basing her testimony off records alone. (Decl. Rosal, Exh. C, 12:2-13,
19:1-6, 24:15-19).
As the moving party has not met
its burden, burden shifting does not occur and an analysis of the arguments can
cease at this time