2011-00104597-CU-PO

Vivian Hua vs. Sunrise Recreation And Park District

Nature of Proceeding:     Motion for Summary Judgment

The motion of Sunset Recreation and Park District (“District”) for summary judgment is
DENIED.

This is Plaintiff Vivian Hua’s (“Hua”) personal injury action against the District.  Hua,
who is a minor appearing through her guardian ad litem, alleges that she almost
drowned while swimming in a District pool facility.  The District is a public entity.

The instant motion is the District’s second attempt at summary judgment.  The court
granted the first motion in part and treated the balance as a motion for judgment on the
pleadings, which the court also granted with leave to amend.  Hua then filed the
operative second amended complaint (“SAC”), which contains a single cause of action
for negligence.  (Although the SAC contains a heading entitled “Second Cause of
Action for Medical Bills,” there does not appear to be any dispute as to whether this
heading states an independent cause of action; it appears merely to point out
allegations relative to one component of Hua’s damages.)  The arguments supporting
the instant motion do not duplicate arguments raised in the District’s first motion for
summary judgment.  Hua does not argue that the District was required to support the
instant motion with newly discovered facts or circumstances or a change in law
pursuant to CCP § 437c(f)(2).

Notwithstanding California public entities’ statutory immunities from suit, (see Cal.
Gov’t Code §§ 815 et seq.), plaintiffs generally may sue a public entity for negligence
in two circumstances: (1) where the entity breached a mandatory, statutory duty, and
(2) where the entity is vicariously liable for its employees’ negligence.  (See Eastburn
th
v. Regional Fire Prot. Auth. (2003) 31 Cal.4   1175, 1178, 1183-1184.)  The District
argues that it is entitled to summary judgment because Hua cannot establish either
circumstance.  Because the court rejects the District’s contention that Hua’s tort cliam
precludes her from advancing a negligence cause of action base on vicarious liability,
it denies the motion.

The District’s argument that Hua cannot establish negligence based on vicarious
liability focuses on the sufficiency of Hua’s tort claim.  Under Government Code § 910
(e), Hua was required to include the names of the negligent public employees “if
known.”  Hua’s tort claim indicates that the lifeguards on duty during the incident were
negligent, but it further indicates that those and any other negligent employees’ names
were “unknown at present.”  According to the District, the claim was facially valid
because it appeared that Hua did not know the names of the District’s assertedly
negligent employees at the time the claim was submitted.

However, the District contends that during discovery it learned that Hua’s counsel’s
wife went to the site of the incident and spoke to employees there three months before
Hua filed her tort claim.  (See Undisputed Material Fact 13; Hollingsworth Decl., Exh.
A.)  Citing  Williams v. Braslow (1986) 179 Cal.App.3d 762, the District argues that,
given the circumstances, Hua was required to plead (and is otherwise required to
prove) that she could not have discovered the identities of the assertedly negligent
employees within 100 days of accrual of her negligence cause of action.

Williams involved a medical malpractice action against several doctors, a hospital and
a municipality.  The trial court granted the municipality’s motion for summary judgment
because, whereas the plaintiff’s tort claim set up vicarious liability based on the
negligence of a single doctor, that doctor ended up not being a municipal employee.
The trial court granted summary judgment even though the plaintiff’s complaint
identified other doctors whose negligence allegedly supported municipal liability.  Thus
the issue on appeal was whether the plaintiff’s tort claim, which only identified the non-
employee doctor, barred the plaintiff from pursuing vicarious liability against the
municipality due to the negligence of other municipal employees.

Citing the “if known” caveat in Government Code § 910(e), the Court of Appeal held
that the plaintiff should have been allowed to file an amended complaint in an effort to
allege the circumstances, if any, preventing her from including in her tort claim the
names of the municipal employees whose negligence caused her injuries.  (See
Williams, 179 Cal.App.3d at 771-774.)  Furthermore, because Government Code §
910.6(a) only affords a claimant 100 days after accrual of the cause of action to amend
a tort claim, the Court of Appeal held that the plaintiff was required to allege facts
explaining why she was unable to allege the names of negligent employees within that
time frame.  (Id.)

In this court’s view, Williams is not controlling.  Unlike the plaintiffs in  Williams, Hua
conceded in her tort claim that she did not know the identities of the life guards and
other District employees who were negligent.  The District’s current motion is
predicated on evidence that Hua’s attorney’s wife went to the site of the incident and
spoke to employees there.  Based on this evidence, the District contends that the tort
claim was inaccurate and, therefore, that  Williams requires Hua to plead and prove her
reasonable ignorance of these individuals’ identities during the 100 days after her
negligence cause of action accrued.  However, the current motion is one for summary
judgment, and the evidence of the site visit does not preclude a reasonable inference
that Hua was in fact unable to learn the identities of the assertedly negligent
employees when she filed her tort claim.  In other words, the fact that Hua’s attorney’s
wife went to the site and spoke to employees there does not necessarily mean that
she learned or could have learned the identities of the employees working at the site
on the day of the incident.  As a consequence, the evidence supports an inference that
the tort claim was accurate when filed and therefore that Hua’ complied with the claim-
presentation requirement.

Because the court concludes that Hua is entitled to a trial on her vicarious liability
theory of negligence, it need not address the parties’ dispute over the viability of her
direct-liability theory.

The District’s evidentiary objections are SUSTAINED.

The minute order is effective immediately.  No formal order pursuant to CRC 3.1312 or
further notice is required.