Case Number: BC702022 Hearing Date: June 17, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANTS’ MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

I. INTRODUCTION

On April 13, 2018, Plaintiffs Valentin Paxtor-Lopez, Hermelinda Aguilar, Adan Juarez, and Citlali Juarez (collectively, “Plaintiffs”) filed this action for motor vehicle and general negligence. On December 11, 2018, Plaintiffs filed a first amended complaint for motor vehicle and general negligence arising out of an October 14, 2017 collision. Plaintiffs allege a LAPD officer rear-ended Plaintiffs’ vehicle. Defendants Los Angeles City (“City”) and Bridgette Puentes (“Puentes”) move for summary judgment or summary adjudication.

As a preliminary matter, Plaintiff did not file a responsive separate statement to Defendants’ separate statement of undisputed facts. “An opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).) The statements submitted by City in its separate statement are deemed to be undisputed.

II. FACTUAL BACKGROUND

Plaintiffs allege they suffered injuries when City’s employee Puentes, an LAPD officer, collided with Plaintiffs’ vehicle. (Undisputed Material Fact “UMF” No. 1.) Plaintiffs allege they complied with all claims filing requirements. (UMF No. 2.) City filed an Answer that asserted an affirmative defense that Plaintiffs failed to comply with filing requirements (UMF No. 3). The City Clerk has never received a claim for damages on behalf of Plaintiffs Hermelinda Aguilar, Adan Juarez, or Citlali Juarez as required by the Government Code. (UMF No. 4.)

III. LEGAL STANDARDS

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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia 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

City’s Evidentiary Objections to the Declaration of Jacob O. Partyiyeli

Objection No. 1 is OVERRULED.

Objection No. 2 is SUSTAINED as to lacks foundation and hearsay.

V. DISCUSSION

As framed by the FAC, Plaintiffs allege City was the employer of the LAPD, who employs Puentes. (FAC, ¶ 4.) Plaintiffs allege that Puentes’s negligent driving caused the collision between Plaintiffs and Puentes and was done within the course and scope of her employment with City. (FAC, ¶ 7.)

Before filing a suit against a public entity, a plaintiff must comply with the Government Tort Claims Act, which states, in part: “no suit for money or damages may be brought against a public entity on a cause of action for which a claim is required to be presented . . . until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board . . .” (Gov. Code, § 945.4.) A claim for death or injury to person or personal property shall be presented not later than six months after the accrual of the cause of action. (Gov. Code, § 911.2, subd. (a).) “[S]ubmission of a claim to a public entity pursuant to section 900 et seq. ‘is a condition precedent to a tort action and the failure to present the claim bars the action.’” (Phillips v. Desert Hospital Dist. (1989) 49 Cal.3d 699, 708; Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374 [“liability of a ‘local public entity’ such as the City is subject to a procedural condition precedent; that is to say, the timely filing of a written claim with the proper officer or body is an element of a valid cause of action against a public entity”].) The failure to timely present a proper claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity. (State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239.)

When a plaintiff sues a governmental entity for injuries caused by a government employee’s acts, the plaintiff must comply with the claims presentation requirement of the California Tort Claims Act. (Renteria v. Juvenile Justice, Department of Corrections & Rehabilitation (2006) 135 Cal.App.4th 903, 908; see also Williams v. Braslow (1986) 179 Cal.App.3d 762, 773 [timely presentation and denial of a claim is a precondition of an action for damages against county arising out of its employee’s conduct].)

An action against an employee of a public entity for an act in scope of the employee’s employment is likewise barred if the plaintiff fails to present a claim. (Gov. Code, § 950.2; Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750, 1751; Hopper v. Allen (1968) 266 Cal.App.2d 797, 799 [“complaint does not plead [plaintiff] filed, nor does it plead any excuse for failing to file, a claim with [defendant’s] employer, City of Santa Ana. This necessarily bars suit against [defendant] for defamatory statements, if any, made while [defendant] acted in the course and scope of his employment as City of Santa Ana Police Chief”].)

Julia Amanti, Deputy City Clerk for the City of Los Angeles, is in charge of the filing of all claims presented to the City. After a diligent search of City’s records, she declares the City Clerk’s office never received a claim for damages filed on behalf of, or by Hermelinda Agular, Adan Juarez, or Citlali Jaurez. Plaintiff alleges that Puentes was acting in the scope of her employment when the collision occurred.

City has met its initial burden of showing Plaintiffs did not present claims before filing the action against Defendants. The burden shifts to Plaintiffs to show a triable issue of fact exists. Plaintiffs do not contend that they presented claims. Instead, they argue their action is only against Puentes in her individual capacity, and so the claims presentation requirement does not apply. Plaintiffs argue nothing in the Government Code prevents personal liability to public employees, and it is a triable issue of fact whether Bridgette and City are jointly and severally liable.

Plaintiffs have not shown they may maintain an action against City without first complying with the Government Tort Claims requirements. Plaintiffs do not allege direct liability against City for its own negligence. Their claims against City are premised on City’s vicarious liability for the alleged negligence of Bridgette Puentes. A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would have given rise to a cause of action against that employee. (Gov. Code, § 815.2, subd. (a).)

Plaintiffs also failed to show they may maintain an action against Puentes for her actions in the scope of her employment without first presenting a proper claim. (Gov. Code, § 950.2.) Plaintiffs did not allege a cause of action against Puentes based on actions outside of the scope of her employment.

Plaintiffs do not argue they should be excused from the claims presentation requirement. Accordingly, this action against City and Puentes is barred due to Plaintiffs’ failure to present timely claims pursuant to the California Tort Claims Act.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.