Tentative Rulings for November 10, 2020 Departments 54, 403 ......2020/11/10 · 1 Tentative...

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Tentative Rulings for November 10, 2020

Departments 54, 403, 501, 502, 503

There are no tentative rulings for the following cases. The hearing will go forward on

these matters. If a person is under a court order to appear, he/she must do so.

Otherwise, parties should appear unless they have notified the court that they will

submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)

19CECG03270 Jaime v. Cervantes (Dept. 501)

20CECG02286 Transportation Alliance Bank, Inc. v. Singh (Dept. 403)

The court has continued the following cases. The deadlines for opposition and reply

papers will remain the same as for the original hearing date.

16CECG00418 Fernandez v. Suburban Propane is continued to Tuesday, December

1, 2020 at 3:30 p.m. in Dept. 501

18CECG02675 Chairatnathrongporn v. State of California Department of

Transportation is continued to Thursday, December 17, 2020 at 3:30

p.m. in Dept. 403

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 54

Begin at the next page

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(27)

Tentative Ruling

Re: Casarez v. Hill, et al.

Superior Court Case No. 19CECG03758

Hearing Date: November 10, 2020 (Dept. 54)

Motion: Demurrer by Defendant Walmart, Inc. to the First Amended

Complaint

Tentative Ruling:

To overrule Defendant Walmart, Inc.’s demurrer. (Code of Civ. Proc., § 430.10,

subd. (e).) Defendant Walmart, Inc. shall file and serve its answer to the First Amended

Complaint within thirty (30) days from the date of this order.

If oral argument is timely requested, it will be heard on Friday, November 13, 2020,

at 8.30 a.m., in Dept. 54.

Explanation:

Demurrer - General Standard of Ruling

“The rule governing pleading in this state is that a plaintiff need only ‘set forth the

ultimate facts constituting the cause of action, not the evidence by which [the] plaintiff

proposes to prove those facts’ [Citation].” (Knox v. Dean (2012) 205 Cal.App.4th 417,

431.) Further, “[w]e treat the demurrer as admitting all material facts properly pleaded,

but not contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39

Cal.3d 311, 318.)

Also, “a party may plead in the alternative and may make inconsistent

allegations.” (Adams v. Paul (1995) 11 Cal.4th 583, 593; Mendoza v. Continental Sales

Co. (2006) 140 Cal.App.4th 1395, 1402 [“When a pleader is in doubt about what actually

occurred or what can be established by the evidence, the modern practice allows that

party to plead in the alternative and make inconsistent allegations.”].)

The function of a demurrer is to test the sufficiency of a plaintiff’s pleading by

raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545) The test is

whether plaintiff has succeeded in stating a cause of action; the court does not concern

itself with the issue of plaintiff’s possible difficulty or inability in proving the allegations of

his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) “In assessing the

sufficiency of the complaint against the demurrer, we treat the demurrer as admitting all

material facts properly pleaded. [Citation.] [W]e bear in mind our well established policy

of liberality in reviewing a demurrer sustained without leave to amend: ‘the allegations

of the complaint must be liberally construed with a view to attaining substantial justice

among the parties.’ [Citations.]” (Glaire v. LaLanne-Paris Health Spa, Inc. (1974) 12

Cal.3d 915, 918.)

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Any valid cause of action overcomes a general demurrer. (Quelimane Co., Inc. v.

Stewart Title Guarantee Co. (1998) 19 Cal.4th 26, 38-39; Adelman v. Associated

International Insurance Co. (2001) 90 Cal.App.4th 352, 359.) In ruling on a demurrer, the

court will give the complaint a reasonable interpretation, reading it as a whole and its

parts in their context. (Speegle v. Board of Fire Underwriters (1946) 29 Cal.2d 34, 42.)

First and Second Causes of Action: Motor Vehicle and Negligence

“A plaintiff in any negligence suit must demonstrate ‘ “a legal duty to use due

care, a breach of such legal duty, and [that] the breach [is] the proximate or legal cause

of the resulting injury.”’ [Citations.]” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)

In addition, “it is sufficient to allege the negligence in general terms, specifying,

however, the particular act alleged to have been negligently done.” (Rennard v.

Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 151.) Similarly, the existence of an

agency relationship can be established by general averments. (Skopp v. Weaver (1976)

16 Cal.3d 432, 437.)

A motorist has “a duty, both by statute and common law, to operate his vehicle

without negligence so as to abstain from injuring any other person or his property.”

(Bewley v. Riggs (1968) 262 Cal.App.2d 188, 194.) In addition, an employer is liable for an

employee’s tortious acts committed within the course and scope of employment. (Perez

v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 968; Lisa M. v. Henry Mayo Newhall

Memorial Hospital (1995) 12 Cal.4th 291, 296-297 [even “an employee's willful, malicious

and even criminal torts may fall within the scope of his or her employment for purposes

of respondeat superior, even though the employer has not authorized the employee to

commit crimes or intentional torts.”].)

Also, a hirer can be liable for negligent acts of an independent contractor where

the hirer retains control “as to the mode of doing the work contracted for.” (Johnson v.

Ralphs Grocery Co. (2012) 204 Cal.App.4th 1097, 1107; see also McKown v. Wal-Mart

Stores, Inc. (2002) 27 Cal.4th 219, 225-226 [hirer liable when the equipment it requested

independent contractor to use malfunctioned].)

Here, the first amended complaint alleges that at the time of the collision the

defendant driver “was recklessly distracted and/or under the influence of some

intoxicating or sleep-inducing substance ….” (FAC, ¶ 7.) Also, the collision allegedly

occurred when defendant driver failed to stop at a stop sign. (Ibid.) Accordingly, in

alleging that the driver defendant’s recklessness or intoxication and subsequent failure

to stop at the stop sign caused the collision, the first amended complaint has sufficiently

identified the conduct allegedly constituting negligence.

Furthermore, the first amended complaint alleges the defendant driver “was

acting in the course and scope of his employment or agency” at the time of the collision.

(FAC, pg. 5.) The entity defendants – including demurring defendant Walmart, Inc. –

allegedly employed the defendant driver and/or owned and controlled the truck that

collided with the decedent’s car. (FAC, pgs. 4-5.) The first amended complaint also

alleges the entity defendants negligently failed to train and supervise the driver

defendant and negligently failed to maintain and repair the semi-truck that collided with

the decedent’s car. (FAC, pg. 5.)

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The allegations that the entity defendants – including demurring defendant

Walmart – employed the driver defendant and/or retained ownership and control of the

truck identifies conduct sufficient to plead negligence. (Rennard v. Lockheed, supra, 26

Cal.2d at p. 151 [general terms sufficient to state cause of action for negligence provided

particular act alleged].) In essence, the allegations are more than a “bare statement”

of negligence. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) Accordingly, the first

amended complaint is sufficient to state a cause of action for motor vehicle and

negligence against the entity defendants, including demurring defendant Walmart, Inc.

Third Cause of Action: Wrongful Death

“In any action for wrongful death resulting from negligence, the complaint must

contain allegations as to all the elements of actionable negligence.” (Jacoves v. United

Merchandising Corp. (1992) 9 Cal.App.4th 88, 105.)

Here, as mentioned above, the motor vehicle and negligence causes of action

are sufficiently pled, therefore, there is sufficient basis for the wrongful death cause of

action. The demurrer is overruled.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure

section 1019.5, subdivision (a), no further written order is necessary. The minute order

adopting this tentative ruling will serve as the order of the court and service by the clerk

will constitute notice of the order.

Tentative Ruling

Issued By: JYH on 11/9/2020 .

(Judge’s initials) (Date)

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(19)

Tentative Ruling

Re: Orozco v. Bulldog Square, Inc.

Fresno Superior Court Case No. 18CECG01105


Motion: by plaintiff for approval of PAGA settlement

Tentative Ruling:

To deny, without prejudice. To order that any future motion include any settlement

reached by plaintiff for personal recovery in this case.

Explanation:

Labor Code section 2699(l)(2) states (emphasis added): “The superior court shall

review and approve any settlement of any civil action filed pursuant to this part. The

proposed settlement shall be submitted to the agency at the same time that it is

submitted to the court. Here, the settlement was submitted to the Labor Workforce

Development Agency (“LWDA”) on October 27, 2020, only ten court days before the

hearing, and eight days after submitting the settlement to the Court. The LWDA is

permitted the same amount of time, which must be sufficient for a noticed motion, to

make a decision whether to object or otherwise speak about the settlement, which is

made on its behalf by plaintiff as its agent. (Amalgamated Transit Union, Local 1756, AFL-

CIO v. Superior Court (2009) 46 Cal.4th 993, 1003.)

The prior motion for approval included the personal settlement of plaintiff, which

appeared to reflect that plaintiff was shifting responsibility for costs and fees to LWDA

and away from himself. Any personal settlement must be included with a future motion

seeking approval of settlement under the Private Attorney General Act.





Tentative Ruling

Issued By: KCK on 11/9/20 .


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(27)

Tentative Ruling

Re: State of California v. Arvizu



Motion: Plaintiff’s Motion for Order of Possession

Tentative Ruling:

To grant plaintiff’s motion for an order for possession of the subject parcel. (Code

of Civ. Proc. § 1255.410.)

Explanation:

Under Code of Civil Procedure section 1255.410, subdivision (a), “At the time of

filing the complaint or at any time after filing the complaint and prior to entry of judgment,

the plaintiff may move the court for an order for possession under this article,

demonstrating that the plaintiff is entitled to take the property by eminent domain and

has deposited pursuant to Article 1 (commencing with Section 1255.010) an amount that

satisfies the requirements of that article.” (Code Civ. Proc. § 1255.410, subd. (a).)

“The motion shall describe the property of which the plaintiff is seeking to take

possession, which description may be by reference to the complaint, and shall state the

date after which the plaintiff is seeking to take possession of the property. The motion

shall include a statement substantially in the following form: ‘You have the right to oppose

this motion for an order of possession of your property. If you oppose this motion you must

serve the plaintiff and file with the court a written opposition to the motion within 30 days

from the date you were served with this motion.’ If the written opposition asserts a

hardship, it shall be supported by a declaration signed under penalty of perjury stating

facts supporting the hardship.” (Ibid.)

“The plaintiff shall serve a copy of the motion on the record owner of the property

and on the occupants, if any. The plaintiff shall set the court hearing on the motion not

less than 60 days after service of the notice of motion on the record owner of unoccupied

property. If the property is lawfully occupied by a person dwelling thereon or by a farm

or business operation, service of the notice of motion shall be made not less than 90 days

prior to the hearing on the motion.” (Code Civ. Proc. § 1255.410, subd. (b).)

“Not later than 30 days after service of the plaintiff's motion seeking to take

possession of the property, any defendant or occupant of the property may oppose the

motion in writing by serving the plaintiff and filing with the court the opposition. If the

written opposition asserts a hardship, it shall be supported by a declaration signed under

penalty of perjury stating facts supporting the hardship. The plaintiff shall serve and file

any reply to the opposition not less than 15 days before the hearing.” (Code Civ. Proc.

§ 1255.410, subd. (c).)

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“If the motion is not opposed within 30 days of service on each defendant and

occupant of the property, the court shall make an order for possession of the property if

the court finds each of the following: [¶] (A) The plaintiff is entitled to take the property

by eminent domain. [¶] (B) The plaintiff has deposited pursuant to Article 1 (commencing

with Section 1255.010) an amount that satisfies the requirements of that article.” (Code

Civ. Proc. § 1255.410, subd. (d)(1).)

Also, a public entity seeking to take property by eminent domain must first obtain

a resolution of necessity from its governing body. (Code Civ. Proc. § 1245.220.) “Except

as otherwise provided by statute, a resolution of necessity adopted by the governing

body of the public entity pursuant to this article conclusively establishes the matters

referred to in Section 1240.030.” (Code Civ. Proc., § 1245.250, subd. (a).) In other words,

the resolution of necessity conclusively establishes that the public interest and necessity

require the project, the project is planned and located in the manner that will be most

compatible with the greatest public good and the least private injury, and the property

sought to be acquired is necessary for the project. (Code Civ. Proc. § 1240.030.)

Here, plaintiff has established all of the required elements to allow it to obtain an

order for prejudgment possession of the parcel. Plaintiff is a public entity with the right to

take property by eminent domain. It obtained a resolution of necessity from the State

Public Works Board on March 13, 2020, thus establishing that the project is necessary, that

is it planned and located in a manner that is most compatible with the public good and

least private injury, and that the property to be acquired is necessary for the project. The

plaintiff has also deposited the probable amount of compensation, $639, with the State

Treasurer.

In addition, plaintiff has shown that there is an overriding need for it to possess the

property in order to complete the High Speed Rail project. The plaintiff will also suffer

substantial harm if the project is delayed, since it will incur delay costs if the project does

not go forward, as well as risking the loss of federal funding for the project. Accordingly,

plaintiff has met its burden of showing the basic elements of its claim for an order of

prejudgment possession. Lastly, defendant has not filed an opposition.





Tentative Ruling



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(24)

Tentative Ruling

Re: Ackerman v. Bonadelle Homes, Inc.



Motion: Motion by Travelers Property Casualty Company of America

and The Travelers Indemnity Company of Connecticut

(“Travelers”) to Intervene

Tentative Ruling:

To continue to Wednesday, January 20, 2021, at 3:30 p.m. in Department 403. The

corrected opposition brief of defendants/cross-complainants Bonadelle, Inc., BN 5233 LP,

BN 5950 LP, BN 5312 LP, and BN 4870 LP (“Bonadelle”) must be filed and served on or

before close of business on Tuesday, November 10, 2020. Travelers may file and serve a

new reply brief on or before Friday, November 20, 2020, in response.

Explanation:

Due to a clerical or computer error, Bonadelle did not file or serve a complete

Opposition brief. Bonadelle has been given an opportunity to re-file and re-serve the

complete version; therefore, Travelers is given an opportunity to file a new reply brief.





Tentative Ruling



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(19)

Tentative Ruling

Re: In re Sequoia Companies, LLC



Motion: by non-party to reconsider 2015 minor’s compromise approval

order issued in dismissed case

Tentative Ruling:

To deny.

Explanation:

Petitioner is a factoring company that seeks to purchase part of a structured

settlement payment due to Zachary Herr, who suffered a traumatic brain injury when hit

by a truck traveling some 50-60 miles an hour while riding his bicycle. He was not wearing

a helmet, and suffered a skull fracture along with several other broken bones, as well as

bleeding between his skull and his brain. The injury required emergency surgery, including

a craniotomy. His parents filed a case on his behalf in this court, being Case No.

13CECGT02083. The medical records in that file show the above, as well as that Mr. Herr

continued to suffer difficulties walking, keeping his balance, a personality change, and

a cognitive disorder, long after the accident.

The first request to approve compromise of his claim as a minor was denied without

prejudice by then Judge Snauffer (currently a Court of Appeal Justice), who made the

following findings:

“In order to protect the Claimant’s best interests, the Court requests

Counsel to require the following additional order at Order Approving

Compromise 12: ‘The payments called for under the single-premium

deferred annuity cannot be accelerated, deferred, increased, nor

may the minor anticipate, sell, transfer, assign, or encumber any of

the said annuity payments upon achieving majority or otherwise.’ ”

A second request to approve compromise of his claim was granted, and

included this order:

“The payments called for under the single-premium deferred annuity

cannot be accelerated, deferred, increased, nor may the minor

anticipate, sell, transfer, assign or encumber any of the said annuity

payments upon achieving majority or otherwise.”

Attachment 7c(2)(b) to that order also states: “No part of said $478,912.13 may

be paid to the Petitioner, this Court having determined that a tax-free structured

settlement is in the best interests of the minor Petitioner.” The annuity payment schedule

was included and shows Mr. Herr was to be paid $50,000 on his 18th birthday in 2015.

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The original case was concluded by a dismissal with prejudice on April 1, 2015.

The papers in this 2020 case set forth no legal authority permitting the 2013 case

to be reopened, nor any authority that would allow this court to strike part of the minor’s

compromise order therein. Defense counsel in the 2013 case was not notified of this

petition to obtain new and different orders in the dismissed 2013 case.

“A final judgment on the merits which is not void on its face or subject to

collateral attack is protected by the doctrine of res judicata after the time for ordinary

direct attack has passed. The doctrine of finality of judgments rests upon principles of

res judicata, and both principles are grounded on the policy that disputes should be put

to final rest by a valid final judgment rendered by a court having jurisdiction.” Corral v.

State Farm Mut. Auto Ins. Co. (1979) 92 Cal.App.3d 1004, 1009 (internal citation omitted).

Petitioner and Mr. Herr argue that the prior judgment and orders underlying it may

be challenged now as his circumstances are different today than when his tort case was

concluded. If dismissals and court-approved settlements were subject to attack

because of changed circumstances occurring after a judgment, no judgment would

ever be final. The petition is denied and dismissed with prejudice.





Tentative Ruling Issued By: DTT on 10/23/2020 .


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(17)

Tentative Ruling

Re: Plescia v. Ameripride Services, Inc., et al.



Motion: by Defendants for Summary Judgment/Adjudication

Tentative Ruling:

To continue the hearing on the motion until approximately March 2021. To vacate

the current trial dates in favor of later dates in 2021 (May 10, July 12, or October 18).

All trial counsel, or an attorney knowledgeable about trial counsel’s calendar, shall

appear at 3:30 p.m. on November 10, 2020, for a trial setting conference. The motion will

be reset at that time, as well.





Tentative Ruling

Issued By: DTT on 11/3/2020 .


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(29)

Tentative Ruling

Re: Robles v. Costco

Superior Court Case no. 20CECG00497


Motions: Applications of Kelly Mulrane and Eric Zalud to appear as counsel

pro hac vice

Tentative Ruling:

To grant both applications. (Cal. Rules of Court, rule 9.40.)

Explanation:

Defendant Costco Wholesale Corporation has filed applications for Kelly Mulrane

and Eric Zaludto to appear in the above-referenced matter pro hac vice. The

applications comply with the requirements of California Rules of Court, rule 9.40, and no

opposition has been filed. The applications are therefore granted.





Tentative Ruling

Issued By:_________DTT__________on____11/9/2020_____.


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(29)

Tentative Ruling

Re: In re: Ariana Leija



Motion: Petition to compromise claim of a minor

Tentative Ruling:

To deny without prejudice. Petitioner must file an amended petition and obtain a

new hearing date for consideration of the amended petition. (Super. Ct. Fresno

County, Local Rules, rule 2.8.4.)

Explanation:

Petitioner marks item 9.a., representing that the minor has fully recovered from

her injuries. The most recent medical report provided, however, states at item 5/post-

concussion syndrome, that the minor was continuing to engage in baby talk, was

whiny, having difficulty getting to sleep, was "much more clingy," was apparently

scheduled for an MRI of the head, had been referred to psychology and Petitioner was

awaiting a return call, and was asked to return for a follow-up visit in approximately

three months and for a well child visit in approximately one year. (Pet., attch. 9,

documentation of 6/12/2018 visit.) The documentation provided does not establish that

the minor has fully recovered. The petition is therefore denied without prejudice.





Tentative Ruling

Issued By: DTT on 11/9/2020 .


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(29)

Tentative Ruling

Re: Jones v. Hiller Aircraft Corporation



Motion: Defendant Roadtex LTL, Inc.'s application for determination

of good faith settlement

Tentative Ruling:

To take off calendar. (Code Civ. Proc. §877.6(a)(2).)

Explanation:

A "settling party may give notice of settlement to all parties and to the court,

together with an application for determination of good faith settlement and a proposed

order. [...] The notice, application, and proposed order shall be given by certified mail,

return receipt requested, or by personal service. [...] Within 25 days of the mailing of the

notice, application, and proposed order, or within 20 days of personal service, a

nonsettling party may file a notice of motion to contest the good faith of the settlement.

If none of the nonsettling parties files a motion within 25 days of mailing of the notice,

application, and proposed order, or within 20 days of personal service, the court may

approve the settlement." (Code Civ. Proc. §877.6(a)(2), italics added.)

Here, Defendant Roadtex moves for determination of good faith settlement

pursuant to Code of Civil Procedure section 877.6, subdivision (a)(2). The application was

served on all parties by certified mail on October 20, 2020. Pursuant to the authority cited

by Defendant Roadtex, any hearing on the application must be requested by a

nonsettling party seeking to contest the settlement. However, here it was moving party

that requested the hearing on the instant application. The Court found no papers

contesting the settlement in its file. It appears that the application is not properly before

the Court, therefore the hearing is taken off calendar.





Tentative Ruling

Issued By: RTM on 10/26/2020 .


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(19)

Tentative Ruling

Re: Thornton Law Group, P.C. v. Patterson



Motion: by defendants to vacate default judgment

Tentative Ruling:

To deny.

Explanation:

A notice of intent to file a motion to vacate the default judgment was filed on

September 14, 2020. It was not signed by counsel. The judgment was entered on March

12, 2020, 186 days beforehand. No actual motion nor any declarations were submitted.

The motion is therefore denied under Code of Civil Procedure sections 473(b) and

663a(a).





Tentative Ruling



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(03)

Tentative Ruling

Re: Jones v. Hiller Aircraft Corp.



Motion: By Defendant Hiller Aircraft Corp. for Summary Judgment

By Plaintiff Jones for Summary Adjudication of Defendant City

of Firebaugh’s Affirmative Defense

By Defendant City of Firebaugh for Sanctions against Plaintiff

Tentative Ruling:

To deny defendant Hiller Aircraft Corporation’s motion for summary judgment.

(Code Civ. Proc. § 437c.) To grant plaintiff’s motion for summary adjudication of

defendant City of Firebaugh’s affirmative defense of design immunity. (Ibid.) To deny

defendant City of Firebaugh’s motion for sanctions against plaintiff for bringing a frivolous

motion for summary adjudication. (Code Civ. Proc. § 128.7.)

Explanation:

Hiller Aircraft’s Motion for Summary Judgment: Hiller has only moved for summary

judgment as to the entire complaint, not summary adjudication of each separate cause

of action. While a party may make a motion for summary adjudication in the alternative

to a motion for summary judgment, the court may not grant summary adjudication

where the notice of motion only seeks summary judgment. (Maryland Cas. Co. v. Reeder

(1990) 221 Cal.App.3d 961, 974, fn. 4.)

Moreover, “[i]f summary adjudication is sought, whether separately or as an

alternative to the motion for summary judgment, the specific cause of action, affirmative

defense, claims for damages, or issues of duty must be stated specifically in the notice of

motion and be repeated, verbatim, in the separate statement of undisputed material

facts.” (Cal. Rules of Court, Rule 3.1350, subd. (b).) In addition, “[t]he Separate

Statement of Undisputed Material Facts in support of a motion must separately identify:

[¶] (A) Each cause of action, claim for damages, issue of duty, or affirmative defense

that is the subject of the motion; and [¶] (B) Each supporting material fact claimed to be

without dispute with respect to the cause of action, claim for damages, issue of duty, or

affirmative defense that is the subject of the motion.” (Cal. Rules of Court, Rule 3.1350,

subd. (d)(1)(A), (B).)

Here, Hiller’s notice of motion only seeks summary judgment as to the entire

complaint, not summary adjudication of the individual causes of action. Hiller’s separate

statement also does not set forth the facts that would support adjudication of each

separate cause of action. Thus, since Hiller has only moved for summary judgment and

not summary adjudication of each separate cause of action, Hiller has the burden of

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showing that plaintiff cannot prevail on any of his causes of action alleged against it and

that it is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c, subd.’s (a),

(c).) If Hiller fails to meet its burden as to any cause of action alleged against it, or if there

is even one disputed material fact, then the court must deny the entire motion. (See Weil

& Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶

10:28.)

However, Hiller has not presented any facts, evidence, or argument to show that

it is entitled to summary judgment as to the premises liability claim alleged by plaintiff.

Hiller only argues that it is entitled to summary judgment of the entire complaint because

its general manager, Steven Palm, was allegedly not acting in the course and scope of

his employment at the time he stopped plaintiff’s truck, closed the gate, refused to let

him leave until he paid $50, used racial epithets against him, and then started fighting

with him. Hiller contends that it cannot be held vicariously liable for the actions of Palm

because his actions were not directly related to, or an “outgrowth” of, his employment

with Hiller. Yet Hiller’s argument appears to relate only to the general negligence cause

of action, not the premises liability claim.

Plaintiff’s premises liability cause of action is based on defendant’s actions in

placing concrete barriers, cables, and wooden poles on the road outside of Hiller’s

property, which allegedly created a dangerous condition that led to plaintiff’s injuries.

(FAC, ¶¶ 12-15.) Hiller’s motion does not present any evidence or argument that would

tend to show that plaintiff cannot prove the existence of a dangerous condition on the

defendant’s property, that he cannot prove that defendant knew or should have known

of the condition and failed to correct it, or that he cannot prove that the condition

caused his injuries. (CACI 1000, 1003.) Thus, Hiller has failed to show that it is entitled to

summary judgment as to all of the causes of action in the complaint, and as a result the

entire motion for summary judgment must be denied.1

Plaintiff’s Motion for Summary Adjudication: In response to plaintiff’s cause of

action for dangerous condition on public property, the City of Firebaugh has alleged a

sixteenth affirmative defense of design or plan immunity under Government Code

section 830.6. However, plaintiff contends that defendant City cannot prove the

essential elements of its design immunity defense, and therefore plaintiff is entitled to

summary adjudication of the defense.

Under Government Code section 830.6,

Neither a public entity nor a public employee is liable under this chapter for an

injury caused by the plan or design of a construction of, or an improvement to,

public property where such plan or design has been approved in advance of the

construction or improvement by the legislative body of the public entity or by

some other body or employee exercising discretionary authority to give such

approval or where such plan or design is prepared in conformity with standards

previously so approved, if the trial or appellate court determines that there is any

1 Since the court intends to deny the motion on procedural grounds, there is no reason to address

the issue of whether there are triable issues of material fact with regard to the individual causes of

action. There is also no need to address plaintiff’s objections to Hiller’s evidence.

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substantial evidence upon the basis of which (a) a reasonable public employee

could have adopted the plan or design or the standards therefor or (b) a

reasonable legislative body or other body or employee could have approved the

plan or design or the standards therefor.

“In other words, a public entity claiming design immunity must establish three

elements: (1) a causal relationship between the plan or design and the accident; (2)

discretionary approval of the plan or design prior to construction; and (3) substantial

evidence supporting the reasonableness of the plan or design.” (Cornette v.

Department of Transp. (2001) 26 Cal.4th 63, 69, internal citations omitted.)

“Design immunity is an affirmative defense that the entity must plead and prove.

An entity's ‘failure to prove any of the enumerated ingredients is fatal to the applicability

of the defense.’” (Martinez v. County of Ventura (2014) 225 Cal.App.4th 364, 369, internal

citations omitted.) Thus, if the public entity fails to provide evidence that the design was

approved in advance of the construction by the legislative body of the public entity or

some other body or employee exercising discretionary authority to give such approval,

the defense does not apply. (Ibid.)

Likewise, if the public entity submits no evidence that any design was submitted,

even a simple shop drawing, then the design immunity defense has not been established.

(Id. at p. 370.) The design does not have to be expressed in any particular form, but it

does need to be sufficiently explicit for it to be understandable to the employee giving

the approval. (Ibid, citing Thomson v. City of Glendale (1976) 61 Cal.App.3d 378, 385.)

“Because the County presented no evidence of any design, there was no evidence of

a design that anyone with authority to approve it could approve.” (Ibid.)

Here, plaintiff has met its burden of presenting evidence indicating that the City

of Firebaugh did not have a design or plan for the subject portion of M Street, and that

there was no approval of any design or plan by anyone at the City. The City’s responses

to written discovery conceded that it had not been able to locate any design or plan for

the roadway despite a diligent search. (Plaintiff’s UMF No. 8.) The City Engineer, Mario

Gouveia, testified at his deposition that he did not know when the roadway was built or

designed. (Plaintiff’s UMF No. 9.) The City admitted that there are no plans, designs, or

“as-builts” for the subject portion of M Street. (Plaintiff’s UMF No. 12.)2

Thus, plaintiff has met its burden of showing that the City cannot prove that it had

a design or plan for the subject roadway, or that anyone with discretionary authority

approved the plan. Nor is there any evidence that the plan itself was reasonable, as

there is no evidence of any plan. Consequently, plaintiff is entitled to summary

adjudication of the design immunity defense.

In opposition to the motion for summary adjudication, the City raises a number of

arguments. However, none of its contentions are sufficient to raise a triable issue of

material fact with regard to the question of whether a plan or design existed, or whether

2 The City raises numerous objections to the plaintiff’s evidence in support of its motion. The court

intends to overrule all of the objections.

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it was approved by someone with discretionary authority before the construction of the

roadway.

First, the City argues that, in order to prevail on its motion, plaintiff must first identify

the alleged dangerous condition and where it was located, so that the City can then

determine whether any plans existed for that property. However, the City has not cited

any authorities that would require the plaintiff to prove up any part of his dangerous

condition cause of action in order to obtain summary adjudication of the design

immunity defense.

Notably, here plaintiff is not seeking to obtain summary adjudication of his own

causes of action. Instead, he seeks to obtain summary adjudication of the City’s defense

of design immunity, which he is allowed to do under Code of Civil Procedure section

437c, subdivision (f)(1). “A party may move for summary adjudication as to … one or

more affirmative defenses … if the party contends that … there is no affirmative defense

to the cause of action ... A motion for summary adjudication shall be granted only if it

completely disposes of … an affirmative defense …” (Code Civ. Proc., § 437c, subd.

(f)(1).)

Plaintiff has met his burden of showing that defendant cannot prove its affirmative

defense of design immunity, since it cannot establish one or more elements of the

defense, namely that a plan or design existed and that it was approved by someone

with discretionary authority before construction. There is no requirement that plaintiff also

prove up any elements of his own dangerous condition claim before obtaining summary

adjudication of the design immunity defense.

The City has also argued that plaintiff has to prove that the incident was not

caused by the design of the roadway in order to obtain summary adjudication of the

design defense. Again, however, the City offers no authorities that would require a

plaintiff to prove that the design of the roadway was not a cause of the accident in order

to obtain summary adjudication of the design immunity defense. Ultimately, the burden

is on the City to show that the design immunity defense applies; it is not on the plaintiff to

prove that the dangerous condition of the roadway was not part of its design. (Martinez

v. County of Ventura, supra, 225 Cal.App.4th at p. 369.) In any event, plaintiff has met its

burden of producing evidence showing that the City cannot prove that there was a plan

or design for the roadway, or that the plan or design was approved by an employee with

discretionary authority to do so before construction of the roadway. Plaintiff does not

have to do anything more in order to obtain summary adjudication of the defense.

In addition, the City argues that plaintiff has “concealed” certain key facts from

the court regarding the condition of the roadway, including whether trucks were actually

able to turn around on the road despite the presence of barriers and that the roadway

had been previously abandoned by the City. However, these alleged facts do not

appear to be relevant to the outcome of the present motion. Regardless of whether

other trucks might have been able to make turns without going onto Hiller’s property or

whether the City abandoned the roadway before the accident, the City would still need

to prove that there was a plan or design that was approved before construction in order

to prevail on its design immunity claim. The other facts cited by the City may be relevant

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to other claims or defenses in the case, but they do not affect the City’s ability to prove

up its design immunity defense.

Next, the City argues that, although plaintiff may have proved that there were no

written plans, he has not proved that there were no oral plans, or that the plans were not

destroyed or lost due to a fire. The City contends that plans can be verbal, and that

approval can be established through oral testimony even if the plans are not signed. The

City cites Bane v. State of California (1989) 208 Cal.App.3d 860 (abrogated on other

grounds as stated in Cornette v. Dept. of Transportation, supra, 26 Cal.4th at p. 74, fn. 3)

in support of its position here.

In Bane, the Fifth District Court of Appeal held that it was not necessary for an

engineer to sign off on the plans for highway construction or modifications in order for

the design immunity defense to apply. While the plans were not signed by the Caltrans

engineer, he orally testified that he read and approved the plans as reasonable, which

was the customary procedure for such plans. (Id. at p. 868.) “When design drawings are

not signed, as was the case with the striping, delineator and sign plans, the public entity

has a more difficult time demonstrating that the plans were ‘approved.’ Nevertheless, if

the public entity can prove the requisite approval with oral testimony, as it did here, the

approval element of design immunity is met.” (Id. at p. 869.)

However, the Bane court did not hold that the plans themselves could be “oral”

in form. At most, it held that “[i]t is not the form of the plan or the form of the approval

that is critical to design immunity” and that oral testimony from the approving employee

can establish that he approved the plans. (Ibid.) In Bane, it appears that the plans were

in writing, but that they were not signed by the engineer, who instead approved them

by other means. (Ibid.) The plans still needed to be in some form that could be

understood and approved by the employee. (Id. at p. 868.)

In any event, here the City points to no evidence that there were any plans at all,

whether written, oral, or in some other form. Nor has the City pointed to any evidence

that an employee approved the plans for the roadway before construction. Indeed, the

City’s employees testified that they were unable to locate any plans even after a diligent

search for them, and that they did not know if such plans existed, or even when the road

was constructed. The City has not offered any evidence that would tend to raise a triable

issue of material fact as to any of these facts.

While the City points to the fact that one of its employees testified that there had

been a fire at one of the City’s facilities, which the City implies might have destroyed the

plans, the employee’s testimony did not actually state that the plans might have been

destroyed in the fire. Mr. Martin, the City’s Finance Director, actually testified that the

City was unable to locate any plans, designs, or as-builts for the subject roadway despite

a diligent search. (Exhibit G to Russell decl., Martin depo., pp. 12:1 – 14:19.) He also

testified that, to his knowledge, the City had not lost any such plans or drawings for the

roadway. (Id. at p. 14:20-23.) He was asked about where there might have been a fire

that might have burned up the plans or drawings, to which he responded, “The only time

I’ve heard of a fire that happened was at one of the water sites. I’m not too particular

on what water site, but I’m not sure what is actually stored at that location. But that was

during the time I was not with the City of Firebaugh.” (Id. at p. 15:1-5.)

25

Thus, Martin did not testify that the plans might have been burned in a fire, but

only that there had been a fire at one of the City’s water sites before he worked for the

City. This vague statement does not appear to be enough to show that the plans existed

but were burned in a fire, or even raise a triable issue as to this fact, especially in light of

Martin’s statement that the City had not, to his knowledge, lost the plans or drawings for

the road. Also, even if Martin’s statement could be construed as raising a triable issue as

to whether the plans were burned in a fire, there is still no evidence that the plans had

been approved by a person with discretionary authority before the road was

constructed.

Therefore, there are no triable issues of material fact with regard to whether the

City can prove its design immunity defense, and plaintiff is entitled to summary

adjudication of the defense.

City of Firebaugh’s Motion for Sanctions: “Under section 128.7, a court may impose

sanctions if it concludes a pleading was filed for an improper purpose or was indisputably

without merit, either legally or factually.” (Bucur v. Ahmad (2016) 244 Cal.App.4th 175,

189, internal citation omitted.) “A claim is factually frivolous if it is ‘not well grounded in

fact’ and is legally frivolous if it is ‘not warranted by existing law or a good faith argument

for the extension, modification, or reversal of existing law.’ In either case, to obtain

sanctions, the moving party must show the party's conduct in asserting the claim was

objectively unreasonable. A claim is objectively unreasonable if ‘any reasonable

attorney would agree that [it] is totally and completely without merit.’” (Ibid, internal

citations omitted.)

Here, the City argues that plaintiff’s motion for summary adjudication of its

affirmative defense based on design immunity is unsupported by facts or law, and thus

sanctions are warranted. However, as discussed above, the court intends to grant the

plaintiff’s motion for summary adjudication of the design immunity defense, as plaintiff

has met its burden of showing that the City cannot prove that it had any designs or plans

for the subject roadway, or that anyone with discretionary authority approved the plans

before construction. The City has also failed to raise any triable issues of material fact

with regard to whether it had plans for the roadway or whether they were properly

approved before the road was built. Nor has the City raised any legal arguments that

would justify denying the motion for summary adjudication.

Since the court intends to find that the plaintiff’s motion was meritorious, it follows

that the motion was not unsupported by fact or law. Indeed, the motion is well supported

by both legal authorities and admissible evidence. Therefore, the court intends to deny

the motion for sanctions against plaintiff for bringing the motion for summary

adjudication.





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Tentative Ruling



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