Case Number: BC646629 Hearing Date: August 22, 2018 Dept: O

Estate of Raul Casillas, et al. v. Bergman, et al. (BC646629)

1. Defendant Green’s MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

Respondent: Plaintiffs Estate of Raul Casillas, F. and J. Casillas, and L., E., and F. Perez

2. Defendant Bergman’s APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

Respondent: NO OPPOSITION

3. Defendant Claremont Sheltered Care Center (and Green, by joinder)’s MOTION TO CONTEST DEFENDANT JOSE BETETA BERGMAN’S APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

Respondent: Defendant Bergman

TENTATIVE RULING

1. Green’s MSJ

Defendant Green’s motion for summary judgment, or in the alternative, summary adjudication is GRANTED.

Defendant Green moves for summary judgment, or in the alternative, summary adjudication of issues pursuant to CCP 437c.

A defendant moving for summary judgment/adjudication has met his burden of showing a cause of action has no merit if the defendant can show one or more elements of the plaintiff’s cause of action cannot be established. (CCP 437c(p)(2).)

Plaintiffs’ evidentiary objections are overruled.

Defendant’s evidentiary objections are sustained.

ISSUE 1

NEGLIGENCE:

Par. GN-1 alleges that Green “negligent, and carelessly managed, maintained, insufficiently employed, trained, supervised, monitored and/or operated their facility, employees and/or vehicle so as to be the sole and proximate cause of the vehicular accident.” (Defense Separate Statement (DSS) 2.)

Green presents evidence that she has never managed, maintained, employed, trained, supervised, monitored, or operated the CSCC facility, its employees, or the vehicle. (DSS 123.)

Plaintiff produces no evidence contrary to Defendants evidence on this issue. Plaintiff does produce facts addressing a different theory of liability.

The pleadings serve as the “outer measure of materiality” in a summary judgment motion, and the motion may not be granted or denied on issues not raised by the pleadings. (Laabs v. City of Victorville (2008) 163 CA4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 CA4th 60, 74—“the pleadings determine the scope of relevant issues on a summary judgment motion”; Hutton v. Fidelity Nat’l Title Co., supra, 213 CA4th at 493—summary judgment defendant need only “negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings”)

Here, Plaintiffs never amended the FAC nor sought leave to plead a different theory of liability against Green. Accordingly, the court is inclined to grant the motion on the face of the current pleadings and allegations.

However, Green acknowledges that Plaintiffs’ discovery responses reveal a different theory of liability, i.e. that Green is liable because she allowed decedent to be moved to the CSCC facility. (DSS 4.)

If summary judgment is granted on the ground that the complaint is legally insufficient, but it appears from the opposition to the motion that plaintiff could state a cause of action, the trial court should give plaintiff an opportunity to amend the complaint before entry of judgment. (Bostrom v. County of San Bernardino, supra, 35 CA4th at 1663.)

Since the pleadings frame the issues upon summary judgment, the court will give Plaintiffs an opportunity to amend the complaint at the hearing.

If amended and as a matter of judicial efficiency, since both parties addressed Plaintiffs’ theory as framed in their discovery responses, this court will also address this theory below.

Defendant Green contends she was not negligent in the transfer decision. Green produces the following evidence:

1. Raul Castillas (“Raul”) was a mentally-disabled adult who was under court-appointed conservatorship of the county of Riverside Public Guardian since 7/2/08. (Defense Separate Statement (DSS) 15-16.)

2. Green is Raul’s deputy public guardian for the County of Riverside. (DSS 18.)

3. Green had the discretionary authority, without a court order or hearing, to approve or disapprove Raul’s placement into a least restrictive facility. (DSS 68-71.)

4. On 10/1/13, Raul was transferred from Miller’s Progressive Care (a locked psychiatric facility) to Claremont Sheltered Care Center (“CSCC”) (a board and care facility). (DSS 19-20.)

5. At no point during Raul’s conservatorship did Green receive notice or reports of any concerns from anyone, including staff at Miller’s, staff at CSCC, or OAS case managers, that Raul needed a higher level of care, needed to be removed from CSCC, or was at risk of any foreseeable injury. (DSS 60-78, 108-111, 120.)

6. Green was not negligent in any aspect of her duties. (DSS 125.)

The court finds Green has met her burden of production upon summary judgment.

In opposition, Plaintiff does not produce any evidence. Instead, Plaintiffs argue that Green had an obligation to provide notice of any proposed placement changes, and regularly meet and communicate with OAS case workers (Welf & Inst. Code 5358(d)(2) [sic]; see also DSS 7, 34-37, 40, 50, 53); and Green had a duty to prevent Raul from harming himself (Welf & Inst. Code 5001).

Welf. & Inst. Code 5001 delineates the legislative intent of the Lanterman-Petris-Short Act. It does not create a private cause of action.

Welf. & Inst. Code 5358(d)(1) provides, “Except for a conservatee who is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008, the conservator may transfer his or her conservatee to a less restrictive alternative placement without a further hearing and court approval.” Welf. & Inst. Code 5008(h)(1)(B) defines a “gravely disabled” person as “mentally incompetent under Section 1370 of the Penal Code.”

Welf. & Inst. Code 5358(d) deals exclusively with placement of a criminal Defendant who is “gravely disabled” by reason of being found mentally incompetent to stand trial in the criminal court under Pen. Code 1370. Thus, Welf. & Inst. Code 5358 also does not support Plaintiff’s theory.

Further, if Plaintiffs are alleging Professional Negligence, their opposition is not supported by any rebuttal expert testimony. The testimony of an expert witness is required in every professional negligence case to establish the applicable standard of care, whether that standard was met or breached by the defendant, and whether any negligence by the defendant caused Plaintiff’s damages. (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 1001; see also Scott v. Rayhrer (2010) 185 Cal.App.4th 1535, 1542.) Plaintiff must counter with expert rebuttal. (See Jambazian v. Borden (1994) 25 Cal.App.4th 836, 843-844.)

Finally, the court is also in receipt of new evidence filed by Plaintiffs on 8/8/18 wherein Green admitted that she did not review OAS case worker Garcia’s 17 monthly reports from October 2013 through December 2015. (Forstrom Suppl. Decl., Par. 9; Ex. A.) Plaintiffs did not seek a continuance of the MSJ to submit this new evidence. Further, without any expert declaration to the contrary, Plaintiffs’ theory of breach of Professional Negligence fails against Conservator Green.

Summary adjudication of Issue 1 is GRANTED.

ISSUE 2

IMMUNITY:

Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused. (Gov. Code 820.2.)

Placement decisions by public employees are discretionary acts. (See Ortega v. Sacramento County Dept. of Health & Human Services (2008) 161 Cal.App.4th 713, 715-716; see also Christina C. v. County of Orange (2013) 220 Cal.App.4th 1371, 1381; Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456.)

Defendant Green contends she is immune from liability. Green produces the following evidence:

Raul Castillas (“Raul”) was a mentally-disabled adult who was under court-appointed conservatorship of the county of Riverside Public Guardian since 7/2/08. (Defense Separate Statement (DSS) 15-16.) Green is Raul’s deputy public guardian for the County of Riverside. (DSS 18.) Green had the discretionary authority, without a court order or hearing, to approve or disapprove Raul’s placement into a least restrictive facility. (DSS 68-71.) On 10/1/13, Raul was transferred from Miller’s Progressive Care (a locked psychiatric facility) to Claremont Sheltered Care Center (“CSCC”) (a board and care facility). (DSS 19-20.) At no point during Raul’s conservatorship did Green receive notice or reports of any concerns from anyone, including staff at Miller’s, staff at CSCC, or OAS case managers, that Raul needed a higher level of care, needed to be removed from CSCC, or was at risk of any foreseeable injury. (DSS 60-78, 108-111, 120.) Green was not negligent in any aspect of her duties. (DSS 125.)

The court finds Green has submitted sufficient evidence to establish that her placement decision is a discretionary act.

In opposition, Plaintiffs do not produce any evidence. Instead, Plaintiffs contend Green breached her “operational/ministerial” duty to “monitor/supervise” Raul’s care. (Opposition, 6:22-23.) This claim is nowhere mentioned in the FAC nor in discovery responses, and Plaintiffs failed to support the theory with any evidence.

Accordingly, summary adjudication of Issue 2 is GRANTED.

ISSUE 3

PREMISES LIABILITY:

The FAC alleges that Green is liable for premises liability in her capacity as an agent for the County of Riverside, who has been dismissed from the lawsuit. A premises liability claim against Green in her capacity as a public employee requires that there be a dangerous condition of public property. (Gov. Code 840.2.)

There is no showing whatsoever that a road or condition of public property was in a dangerous condition. CSCC’s decision to allow Casilla to move freely without supervision has nothing to do with the physical condition of a public property, and does not constitute a dangerous condition.

Summary adjudication of Issue 3 is GRANTED.

2-3. GFS

Defendant Bergman’s application for determination of good faith settlement is GRANTED and Defendant Claremont Sheltered Care Center (and Green, by joinder)’s motion to contest good faith settlement is DENIED.

Pursuant to CCP 877.6, in an action in which two or more parties are alleged to be joint-tortfeasors, they are entitled to a hearing concerning the good faith issue of a settlement. A determination of good faith requires that the court calculate a rough approximation of plaintiffs’ total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. (Tech-Bilt, Inc. v. Woodard-Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants. (Ibid.)

A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (CCP 877.6(c).)

Here, Plaintiffs and Defendant Bergman agreed to settle the matter for $100,000, which represents Defendant’s full liability insurance.

The court finds that settlement is within the ballpark of Bergman’s share of liability. Bergman’s traffic light was green, and Raul crossed the street against a red light during rainy conditions.

CSCC contends it has not had an opportunity to conduct Bergman’s deposition to determine his financial condition. (Bergman’s deposition was set for 5/14/18, the date the Opposition was filed.) However, CSCC’s Reply, which was filed on 8/14/18, does not address the deposition, and therefore, by implication, the deposition did not reveal any financial conditions that are relevant to this motion.

CSCC contends that Bergman is the Defendant with the majority of liability because his vehicle hit Raul. CSCC also contends that express statutory law and the Constitutional rights of Raul prohibited CSCC from locking up any of its residents, including Raul.

Even if CSCC is minimally liable, the court finds that the settlement is within Bergman’s proportionate share of liability because the value of Plaintiffs’ case is relatively small given Raul’s age and terrible health, and the fact that Raul crossed the street against a red light. Raul, himself, would be deemed the most negligent under these circumstances.

There are no allegations of any collusion, fraud or tortious conduct.

Accordingly, the court finds that settling Defendant has presented sufficient information for this court to determine that the settlement is in good faith. Motion is GRANTED.