Case Number: BC640049 Hearing Date: June 04, 2018 Dept: 5

Background

Plaintiffs Sergio Fontes, Angeline Fontes, and Diego Fontes, by and through their guardian ad litem Maria Zamora, and Plaintiff Jesus Zamora, (collectively, “Plaintiffs”) have brought this action based on a motor vehicle accident involving Los Angeles Sherriff’s Deputies Noe Ramos and Jeffrey Demooy (“Deputies”). Plaintiffs allege that the Deputies negligently caused a fleeing suspect to collide with the vehicle carrying Plaintiffs, resulting in injury to all Plaintiffs. The Deputies were both working in the course and scope of their employment by Los Angeles Sheriff’s Department (“LASD”) when the collision occurred. Plaintiffs have brought this action against defendant County of Los Angeles (“Defendant” or “the County”). It is Plaintiffs’ position that Defendant is liable for Plaintiffs’ injuries because the injuries were caused by the “negligent acts” or omissions of the Deputies, and the County liable is for the Deputies’ actions.

Defendant moves for summary judgment, or in the alternative, summary adjudication on several grounds: (1) that it is immune from liability under Vehicle Code section 17004.7; and (2) that the LASD deputies acted with due regard and therefore were not negligent in performing their duties during the pursuit of the vehicle that struck Plaintiffs’ vehicle.

The Court first heard this motion on April 3, 2018, when both counsel argued the issue of immunity. The Court indicated that it was inclined to deny Defendant’s motion for summary judgment, or in the alternative, summary adjudication on the issue of immunity. The Court, however, ordered further briefing as to the issues unrelated to immunity. As ordered by the Court, the parties have submitted supplemental briefing as to the second issue raised in Defendant’s motion, namely, whether the LASD deputies were exempt from the requirements of certain Vehicle Code violations pursuant to Vehicle Code section 21055 and whether, apart from Vehicle Code violations, there is a triable issue of material fact as to the LASD deputies’ operation of the emergency vehicle with due regard for the safety of others.

No dispositive tentative ruling is issued at this time. Instead, the Court requests that the parties be prepared to address certain issues that the Court has identified in the supplemental briefing supplied by the parties.

Issues to be Addressed at the HEaring

Negligent Act of Defendant Deputies

The Complaint does not include any description of the underlying negligent act giving rise to Defendant’s potential liability. Plaintiffs allege the following in the Complaint:

On 09/28/2015, Plaintiffs was [sic] seriously injured while they were driving . . . when their vehicle was struck by a vehicle which was involved in a high speed pursuit with Defendant and which resulted in a collision which caused damages to each Plaintiff. This negligent act was the actual and proximate cause of the damages alleged herein by the Plaintiffs.

(Compl., at ¶ 5.) Plaintiffs do not define what they mean by the term “this negligent act.” Plaintiffs allege in the Complaint that Defendant is liable for the LASC deputies’ actions under Government Code §§ 815.2(a), and 820(a). Section 815.2(a) states: “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, apart from this section, have given rise to a cause of action against that employee or his personal representative.” Section 820(a) states: “Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his act or omission to the same extent as a private person.” Neither of these sections provides clarity on what “negligent act” Plaintiffs allege to have occurred.

From reviewing Plaintiffs’ separate statement of undisputed facts, filed May 17, 2018, it appears that Plaintiffs are alleging three categories of negligent acts by the LASD Deputies: (1) the driver Deputy Ramos’s decision to initiate the pursuit of the stolen vehicle (Fact 2, 24.5); (2) the manner in which the deputies conducted the chase, including the excessive speeds of both the patrol vehicle and the suspect vehicle (Fact 12.5, 19.5); and (3) the decision not to discontinue the pursuit in light of the excessive speeds of the suspect vehicle and the patrol vehicle (Fact 19).

Plaintiffs should be prepared to address at the hearing whether these are the only three negligent acts or omissions that Plaintiffs allege may give rise to Defendant’s liability. If not, Plaintiffs must be prepared to identify all other negligent acts or omissions that Plaintiffs allege may give rise to Defendant’s liability.

With regard to the first category of negligent acts above — the decision to initiate the pursuit — Plaintiffs should be prepared to address the viability of such a theory of liability in light of well settled case law that “[a] public entity may not be held liable due to its police officers’ decision to engage in a chase.” (City of Sacramento v. Superior Court (1982) 131 Cal.App.3d 395, 404; Gibson v. City of Pasadena (1978) 83 Cal.App.3d 651, 659.)

With regard to the second category of alleged negligent acts giving rise to liability, Defendant should be prepared to address why the evidence of the excessive speeds traveled by the suspect vehicle and the patrol vehicle should not preclude the Court from finding that there is a triable issue of material fact regarding whether the LASD deputies operated the emergency vehicle with due regard for the safety of others. (Facts 12.5, 19.5).

With regard to the third category of alleged negligent acts, Defendant should be prepared to address why the LASD deputies’ decision not to terminate the pursuit in light of the excessive speeds traveled by both the suspect vehicle and the patrol vehicle (Facts 12.5, 19.5) should not be deemed evidence of lack of due care so as to preclude summary adjudication. (Fact 19; Brummett v. County of Sacramento (1978) 21 Cal.3d 880, 886–87 [indicating that failure to discontinue a pursuit could be evidence of lack of due care].)

Defendant’s Challenges to the Pleadings

Defendant argues in its supplemental brief that Plaintiffs have failed to properly identify the statutory basis of liability giving rise to their claims. (Def. Supp. Brief, at pg. 2.) Defendant correctly points out that the County cannot be held liable for general common law negligence.[1] Defendant points out that Plaintiffs have failed to identify the statutory basis giving rise to Defendant’s liability in the complaint. Defendant argues that the pleadings frame the issues for the purposes of summary judgment and that Defendant need only negate Plaintiffs’ theories of liability as alleged in the complaint. (Def. Supp. Brief, at pg. 2, citing Hutton v. Fidelity National Title Co. (2013) 213 Cal.4th 486, 493.)

At no earlier point has Defendant moved to challenge the sufficiency of the Complaint in this litigation. Defendant did not file a demurrer, motion to strike, or motion for judgment on the pleadings. The first time that Defendant has raised an argument related to the sufficiency of the pleadings is in its supplemental brief. This argument was not discussed in Defendant’s moving papers.

Generally, “the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) An opposing party’s opposition papers “may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.” (Hutton, supra, at 493.) However, “[i]f plaintiff wishes to expand the issues presented, it is incumbent on plaintiff to seek leave to amend the complaint either prior to the hearing on the motion for summary judgment, or at the hearing itself.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258.)

Courts undoubtedly have the power to treat a motion for summary judgment as a motion for judgment on the pleadings. “In the course of deciding a motion for summary judgment, if a trial court concludes the complaint is insufficient as a matter of law, it ‘may elect to treat the hearing of the judgment motion as a motion for judgment on the pleadings and grant the opposing party an opportunity to file an amended complaint to correct the defect.’” (Prue v. Brady Company/San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1384 [quoting Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625].)

Defendant should be prepared to address the following issue at the June 4, 2018 hearing on this motion:

· Is Defendant asking the Court to treat this summary judgment or adjudication motion also as a challenge to the pleadings?

If Defendant intends to pursue this motion as a challenge to the pleadings, then Plaintiffs will be asked to address the following issues at the hearing:

· Why should the Court not find the Complaint insufficient given its failure to identify the statutory basis of liability giving rise to Plaintiffs’ claims and given its failure to identify the alleged act(s) or omission(s) that form the basis of Plaintiffs’ claims?

· If the Court treats Defendant’s motion for summary judgment as a motion for judgment on the pleadings and grants such motion, are Plaintiffs seeking leave to amend?

· If so, Plaintiffs should be prepared to proffer the act(s) or omission(s) that Plaintiffs contend was negligent and the statutory basis of liability for Plaintiffs’ claims.

All parties should note that the hearing on this motion and all future court dates will take place at the Court’s new location: Spring Street Courthouse, 312 N. Spring Street, Department 5, Los Angeles, CA 90012.

[1] “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) The intent of the Government Tort Claims Act was “not to expand the rights of plaintiffs in suits against government entities, but to confine potential governmental liability to rigidly delineated circumstances.” (Ibid.)