Judge: Steven A. Ellis, Case: 21STCV09301, Date: 2023-08-10 Tentative Ruling

Case Number: 21STCV09301    Hearing Date: August 10, 2023    Dept: 29

TENTATIVE

Defendant City of Malibu’s motion for summary judgment is GRANTED.

Background 

According to the Complaint, on June 7, 2000, Plaintiff Tal Tzafrir was injured while riding his motorcycle on Latigo Canyon Road in Malibu, California. 

On March 9, 2021, Tal Tzafrir and his spouse Moran Tzafrir (“Plaintiffs”) filed a complaint for damages against Chen Tan, the City of Malibu, the County of Los Angeles, Alcorn Fence Company, Northwest Excavating, and Does 1-100 for 1) Negligence, 2) Dangerous Condition of Public Property under Government Code § 835, and 3) Loss of Consortium.  On June 23, 2022, Plaintiffs amended their complaint to name Global Environmental Network, Inc. as Doe 1

Numerous cross-complaints have been filed in this action. 

On April 26, 2021, the City of Malibu filed a cross-complaint against the other named defendants and Roes 1 through 10.  On June 2, 2022, the City of Malibu amended its cross-complaint to name Global Environmental Network as Roe 1.  The City dismissed Northwest Excavating without prejudice on June 14, 2022. 

On May 17, 2021, the County of Los Angeles filed a cross-complaint against the other named defendants and Roes 1 through 10.  The County dismissed the cross-complaint without prejudice on October 14, 2021. 

On June 29, 2021, Northwest Excavating filed a cross-complaint against the County of Los Angeles and Moes 1 through 50. 

On January 12, 2023, Alcorn Fence filed a cross-complaint against Global Environmental Network and Roes 1 through 50.

On May 25, 2023, Defendant City of Malibu filed this motion for summary judgment or, in the alternative, summary adjudication.  On July 27, 2023, Plaintiffs filed a notice of non-opposition to the motion.

On July 31, 2023, the Court granted the (unopposed) motion for summary judgment filed by Defendant County of Los Angeles.

Trial is currently set for January 9, 2024.

Legal Standard

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure (“CCP”) Section 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 cause of action as framed by the complaint, a defendant moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to show “that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to the cause of action.” (CCP § 437c(p)(2); see also Aguilar, supra, 25 Cal.4th at 850-51; 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 plaintiff to show that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (CCP § 437c(p)(2); see also Aguilar, supra, 25 Cal.4th at 850-51.)  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.)

Request for Judicial Notice

Defendant requests the court take judicial notice of Plaintiffs’ Complaint, attached to the Request for Judicial Notice as Exhibit A.

The court GRANTS Defendant’s request, pursuant to California Evidence Code §452(d).

Discussion

Defendant City of Malibu (“City”) moves for summary judgment or, in the alternative, for summary adjudication as to each cause of action in the Complaint.

1. The First Cause of Action

In the first cause of action in the Complaint, Plaintiffs assert a cause of action for common law negligence.  City argues that because it is a governmental entity, as a matter of law it cannot be liable for common law negligence.

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute.  (Govt. Code, § 815(a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.)  “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.”  (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)  

On the first cause of action, City has met its initial burden of showing “that one or more elements of the cause of action ... cannot be established.”  (CCP § 437c(p)(2).)  In response, Plaintiffs have filed no opposition and so have not shown that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Ibid.) 

Thus, City has shown that, as to the first cause of action in the Complaint, there is no triable issue as to any material fact and City is entitled to judgment as a matter of law.  (CCP 437c(c).)

2. The Second Cause of Action

In the second cause of action in the Complaint, Plaintiffs assert a cause of action for a dangerous condition of public property under Government Code section 835.  City makes a series of arguments as to why this cause of action against it has no merit.

Government Code section 835 sets out the exclusive conditions under which a public entity is liable for injuries caused by a dangerous condition of public property.  (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129, citing Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829; see also Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112.)  As set forth in the statute, there are four elements for such a claim:

“[A] public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes [1] that the property was in a dangerous condition at the time of the injury, [2] that the injury was proximately caused by the dangerous condition, [3] that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and [4] either: (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or¿(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

(Gov’t Code § 835; see also, e.g., Tansavatdi v. City of Rancho Palos Verdes (2023) 14 Cal.5th 639, 653; Thimon v. City of Newark (2020) 44 Cal.App.5th 745, 753.) 

City presented undisputed evidence establishing, as to the fourth element, that it did not create the allegedly dangerous condition or have actual or constructive notice of it in advance of the accident.  (SUMF Nos. 4-6, 11-14.) 

On the second cause of action, City has met its initial burden of showing “that one or more elements of the cause of action ... cannot be established.”  (CCP § 437c(p)(2).)  In response, Plaintiffs have filed no opposition and so have not shown that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Ibid.) 

Thus, City has shown that, as to the second cause of action in the Complaint, there is no triable issue as to any material fact and City is entitled to judgment as a matter of law.  (CCP 437c(c).)

As a result, the Court does not need to reach, and does not reach, City’s other arguments.

3. The Third Cause of Action

In the third cause of action in the Complaint, Plaintiff Moran Tzafrir asserts a cause of action for loss of consortium.  City argues that this claim is barred because Plaintiff did not file a tort claim in her name under the Government Claims Act with City prior to filing suit.

An injured party may generally not maintain a tort action against a public entity unless a claim has been presented to the entity. (Gov. Code, §§ 911.2, 945.4.) The filing of a government 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.” (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990.)

“Generally, each claimant must file his or her own tort claim. When people suffer separate and distinct injuries from the same act or omission, they must each submit a claim. One claimant cannot rely on a claim presented by another. … This rule applies where different claimants are alleging survivor theories and wrongful death theories of liability arising from the same transaction.” (Castaneda v. Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1062-63; see also, e.g., Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 796-97; Nguyen v. Los Angeles County Harbor/UCLA Medical Center (1992) 8 Cal.App.4th 729, 732-734.)

On the third cause of action, City has met its initial burden of showing “that one or more elements of the cause of action ... cannot be established.”  (CCP § 437c(p)(2).)  In response, Plaintiffs have filed no opposition and so have not shown that a “triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Ibid.) 

Thus, City has shown that, as to the third cause of action in the Complaint, there is no triable issue as to any material fact and City is entitled to judgment as a matter of law.  (CCP 437c(c).)

Conclusion

City has shown that it is entitled to judgment as a matter of law on all three causes of action asserted against it in the Complaint.  Accordingly, City’s motion for summary judgment is GRANTED.

Moving party to give notice.