17-CIV-00645 LAURENCE BLICKMAN VS. TOWN OF ATHERTON, ET AL.

LAURENCE BLICKMAN TOWN OF ATHERTON
GEORGE P. ESHOO STEPHEN V. HARRINGTON

MOTION FOR SUMMARY OF JUDGMENT/ADJUDICATION OF ISSUES TENTATIVE RULING:

Defendants TOWN OF ATHERTON; ALFREDO GUARDUCCI; and DANIEL LARSEN’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication is DENIED on the ground that multiple triable issues of material fact exist, such that summary judgment / adjudication is inappropriate. Code Civ. Proc. § 437c.

Specifically, triable issues of material fact exist as to Defendants’ Undisputed Material Facts (“UMF”), UMF Nos. 5, 7, 9, 12, 13, 14, and 16.

The Court rejects Defendants’ argument that Plaintiff has no standing to bring this action. Every action must, except as otherwise expressly authorized by law, be prosecuted in the name of the real party in interest. Code Civ. Proc. § 367. As the individual under court order to pay for his minor grandson’s medical care, Plaintiff is the real party in interest with standing to sue for recovery of those sums he claims were over and above the child’s usual medical expenses as a result of Defendants’ alleged negligence.

There is a triable issue of material fact as to whether Defendants may claim governmental immunity for their conduct. Government Code § 820.2 limits the immunity of public employees to acts or omissions that are the “result of the exercise of the discretion vested in [them]”. Here, Defendants argue that they worked in conjunction with Child Protective Services in this matter and were merely carrying out CPS’ directions in placing the child in the custody of his biological father. Indeed, Defendant Guarducci testified repeatedly that he had no discretion or authority to make decisions regarding custody. (Decl. Rhodes, Exhibit 2, Depo. Guarducci at p. 16:20-17:1; 17:18-24; 21:22-22:10; 27:5-9.) Yet according to CPS records, Defendant Guarducci apparently acted independently of CPS in deciding to place the child in his father’s custody. (Decl. Blickman, Attachment 5.) Thus, whether Defendants were exercising the discretion vested in them, or were engaged in conduct outside the scope of that discretion, is an issue that should be tried before a jury.

With respect to damages, Defendants argue that the amounts Plaintiff claims he expended over and above the usual costs for his grandson’s medical care were unnecessary and excessive. However, the amount of damages, and whether any mitigation efforts should have been made, is again an issue that must be tried before a jury. Defendants’ motion is denied in its entirety.

Plaintiff’s Request for Judicial Notice is GRANTED as to Exhibits B-E. Judicial notice is GRANTED as to Exhibit A to the extent it was filed with the Court, but not as to the truth of any matters asserted therein.

Plaintiff’s Evidentiary Objections are OVERRULED as to Objection Nos. 1-4.

Defendants’ Evidentiary Objections are SUSTAINED as to Objection Nos. 5, 11, 13, 27, 28, 30, 31, 32, 38, 39, and 49, and OVERRULED as to the remainder.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.