Judge: William A. Crowfoot, Case: 19STCV14105, Date: 2022-08-04 Tentative Ruling

Case Number: 19STCV14105    Hearing Date: August 4, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On April 23, 2019, Plaintiff Ronald Auld, Jr. (“Plaintiff”) commenced this action against Defendants Los Angeles County Sheriff’s Department, County of Los Angeles, Deputy Sheriff Vargas, and Nurse Jackson (collectively “Defendants”).  Plaintiff filed the operative Second Amended Complaint (“SAC”) against Defendants on January 5, 2021, alleging cause of action for (1) premises liability (Gov. Code § 835), (2) premises liability (Gov. Code § 835), (3) negligence (Gov. Code §§ 815.2, 820), and (4) negligence (Gov. Code §§ 815.2, 820).

On April 23, 2021, pursuant to Plaintiff’s request, Defendants Deputy Sheriff Vargas and Nurse Jackson were dismissed from this action.

On April 12, 2022, Defendants Los Angeles County Sheriff’s Department and County of Los Angeles (collectively “County Defendants”) filed a motion for summary judgment, or in the alternative, summary adjudication.  County Defendants filed a notice of non-opposition on July 12, 2022.  On July 14, 2022, Plaintiff filed a motion to strike and objection to the motion.  At the hearing on July 19, 2022, the Court continued the hearing to the present date so that Plaintiff could file an opposition brief and allow County Defendants time to respond with a reply brief.  

II.          FACTUAL BACKGROUND

On or about May 12, 2018, and May 27, 2018, Plaintiff was an inmate incarcerated at Los Angeles County Men’s Central Jail.  (SAC, ¶¶ 4, 8.)  Plaintiff was directed, instructed and transported by a Deputy Sheriff to enter into and upon a certain shower facility in the confined area of the jail.  (Id., ¶ 8.)  A certain part and portion of the shower facility that was intended for the use of prisoners and inmates, including Plaintiff, was in disrepair and damaged, constituting a dangerous condition.  (Id.)  As a result of Defendants’ failure to take steps to make the alleged dangerous condition safe or warn Plaintiff of the dangerous condition, Plaintiff was severely cut and lacerated at and around his left ankle while using the shower facilities on May 12, 2018.  (Id., ¶ 17.)  Further, on or about May 27, 2018, Plaintiff slipped on a shower tile and fell, striking his head and sustaining injuries.  (Id., ¶ 25.)

III.        LEGAL STANDARD

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “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, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV.         EVIDENTIARY OBJECTIONS

Plaintiff’s evidentiary objections are OVERRULED.  Motions for summary judgment or adjudication are supposed to address the allegations framed by the pleadings.  The Court additionally notes that the objections are improperly stated within Plaintiff’s response to County Defendants’ separate statement, in violation of CRC 3.1354(b). 

V.           REQUEST FOR JUDICIAL NOTICE

County Defendants request the Court judicially notice their Answer to Plaintiff’s Second Amended Complaint.  The request is GRANTED.

VI.         DISCUSSION

A.   Motion for Summary Judgment

County Defendants move for summary judgment in their favor and against Plaintiff.

County Defendants claim Plaintiff seeks to hold them liable on two claims of dangerous condition of public property under California Government Code section 835.  (Motion, p. 4:8-10.)  However, contrary to County Defendants’ claim, the operative SAC actually alleges four causes of action against County Defendants: the first and second causes of action for premises liability under Government Code section 835 and the third and fourth causes of action for negligence under Government Code sections 815.2 and 820.  County Defendants have only addressed the first and second causes of action asserted against them.  They have not moved on or addressed the third and fourth causes of action asserted against them.  As County Defendants have failed to dispose of all causes of action asserted against them, summary judgment must be denied.

B.   Motion for Summary Adjudication

County Defendants have also moved for summary adjudication on the first and second causes of action in the alternative.  County Defendants argue they are entitled to judgment as to these causes of action because Plaintiff’s claims are barred by Government Code section 844.6.

Government Code section 844.6 provides that “[n]otwithstanding any other provision of this part, except as provided in this section and in Sections 814, 814.2, 845.4, and 845.6, or in Title 2.1 (commencing with Section 3500) of Part 3 of the Penal Code, a public entity is not liable for: . . . [¶] (2) An injury to any prisoner.”  (Gov. Code, § 844.6, subd. (a).)   Section 844.6 further provides that “[e]xcept for an injury to a prisoner, nothing in this section prevents recovery from the public entity for an injury resulting from the dangerous condition of public property under Chapter 2 (commencing with Section 830) of this part.”  (Id., 844.6, subd. (c).)  Section 844.6 thus provides immunity to public entities for an injury to any prisoner, unless one of the enumerated statutory exceptions applies.  (Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1383.)  “Prisoner” is defined to include “an inmate of a prison, jail or penal or correctional facility.”  (Gov. Code, § 844.) 

Here, Plaintiff’s first and second causes of action for premises liability are based on a dangerous condition of public property—i.e., the shower facility at the Los Angeles County Men’s Central Jail.  (Motion, Barzin Decl., ¶ 3, Ex. A., SAC, ¶¶ 8-9.)  Specifically, Plaintiff alleges he suffered injuries when he cut and lacerated his left ankle on May 12, 2018, and slipped on a shower tile and fell on May 27, 2018 while using the shower facility.  (Id., ¶¶ 17, 25.)  These incidents occurred while Plaintiff was an inmate incarcerated at the jail.  (Id., ¶ 4.)

As Plaintiff was a prisoner at the time he suffered his alleged injuries, County Defendants are not liable for Plaintiff’s injuries under Government Code section 844.6.  County Defendants have thus met their burden.

Plaintiff unpersuasively argues that County Defendants cannot assert the immunities provided by Government Code section 844.6 because they have waived them by litigating this action for the past 3 years.  Plaintiff proceeds to describe the doctrines of equitable estoppel and judicial estoppel, neither of which are applicable here.  First, [f]our elements must ordinarily be proved to establish an equitable estoppel: (1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted upon, or must so act that the party asserting the estoppel had the right to believe that it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) he must rely upon the conduct to his injury."  (Migliore v. Mid-Century Ins. Co. (2002) 97 Cal.App.4th 592, 606.)  As for judicial estoppel, this is a doctrine that "prohibits a party from asserting a position in a legal proceeding that is contrary to the position he or she successfully asserted in the same or some earlier proceeding."  (Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 121.)

Plaintiff produces no evidence disputing that he was a prisoner at the time of his injury.  Plaintiff’s sole evidence that County Defendants are equitably and judicially estopped from asserting the immunity provided by Government Code 844.6 is his counsel’s declaration, in which counsel merely states that County Defendants have litigated this case and removed it to federal court, and County Defendant’s Answer filed in federal court.  (Opposition, Behjatnia Decl., ¶¶ 3-4.)  This is insufficient to surmount the fact that County Defendants asserted the immunity in their three responsive pleadings to Plaintiff’s Complaint, First Amended Complaint, and Second Amended Complaint.  Plaintiff does not produce evidence showing that County Defendants ever took a contrary position in a legal proceeding or admitted that the immunity did not apply.  Plaintiff also cites to no case law holding that merely litigating and defending this case constitutes the waiver of a governmental immunity.  Therefore, he has not met his burden to show that a triable issue of material fact exists as to whether any of the exceptions to Government Code section 844.6 apply such that County Defendants may be held liable for his injuries in this case.

Accordingly, County Defendants are entitled to summary adjudication of the first and second causes of action.

C.   Request for Attorney’s Fees and Costs

County Defendants argue they are entitled to reasonable defense fees and costs pursuant to CCP section 1038.

CCP section 1038 provides the following, in relevant part:

In any civil proceeding under the Government Claims Act (Division 3.6 (commencing with Section 810) of Title 1 of the Government Code) or for express or implied indemnity or for contribution in any civil action, the court, upon motion of the defendant or cross-defendant, shall, at the time of the granting of any summary judgment, motion for directed verdict, motion for judgment under Section 631.8, or any nonsuit dismissing the moving party other than the plaintiff, petitioner, cross-complainant, or intervenor, or at a later time set forth by rule of the Judicial Council adopted under Section 1034, determine whether or not the plaintiff, petitioner, cross-complainant, or intervenor brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint, petition, cross-complaint, or complaint or answer in intervention.  If the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party.  An award of defense costs under this section shall not be made except on notice contained in a party’s papers and an opportunity to be heard.

(Code Civ. Proc., § 1038, subd. (a).)  CCP section 1038 further provides that section 1038 “shall only apply if the defendant or cross-defendant has made a motion for summary judgment, judgment under Section 631.8, directed verdict, or nonsuit and the motion is granted.”  (Id., § 1038, subd. (d).)  “Section 1038 authorizes the defendants or cross-defendants to recover reasonable costs after prevailing on a dispositive motion (i.e., summary judgment, directed verdict, nonsuit, judgment before presentation of defense evidence, or other motion in an action for indemnity or contribution).”  (Kobzoff v. Los Angeles County Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 856 (citing CCP section 1038).)

          Here, the Court has only granted summary adjudication, not summary judgment.  County Defendants are thus not entitled to defense costs at this time.

VI.     CONCLUSION

          In light of the foregoing, the Motion for Summary judgment is DENIED.

          The Alternative Motion for Summary Adjudication is GRANTED.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.