Case Name: Garcia, et al. v. Santa Clara Valley Transportation Authority, et al.
Case No.: 16CV297131

Defendants (1) Santa Clara Valley Transportation Authority (“VTA”) and William Welch (“Welch”) (collectively, the “VTA”) and (2) the City of San Jose (the “City”) each move for summary judgment, or in the alternative, summary adjudication in their favor and against plaintiffs Lauro Garcia (“Garcia”), Sandra Linares Ramirez (“Ramirez”), individually and as guardian ad litem for Camila Alvarez (“Alvarez”), a minor (collectively, “Plaintiffs”).

I. Factual and Procedural Background

This is an action for wrongful death and negligence. According to the allegations of the operative complaint (“Complaint”), on June 20, 2015, plaintiff Garcia was a passenger in a vehicle being driven by Aldo Alvarez (the “Decedent”) southbound on Capitol Avenue in San Jose. (Complaint, ¶ 15.) While at the intersection of North Capitol and Madden, the vehicle was struck by a VTA light rail vehicle operated by Welch, resulting in the Decedent’s death and serious injuries to Garcia. (Id., ¶ 16.) Plaintiffs allege that there was inadequate signage, warning lights, gates and other safety designs present at the intersection to prevent the accident, and that Welch was inadequately trained and/or retrained after he had had a similar accident a short time before. (Id., ¶ 18.) They further allege that Welch was negligent in the operation of the train.

Based on the foregoing allegations, on June 30, 2016, Plaintiffs (Garcia, Ramirez, Decedent’s spouse, and Alvarez, Decedent’s child) filed the Complaint asserting the following causes of action: (1) negligence; (2) wrongful death; and (3) negligent entrustment. On March 13, 2019, the VTA filed the instant motion for summary judgment, or in the alternative, summary adjudication. The City filed its own similar motion two days later on March 15, 2019. On May 21, 2019, Plaintiffs filed an opposition to VTA’s motion. No opposition was filed to the City’s motion.

II. VTA’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

A. VTA’s Request for Judicial Notice

In support of its motion for summary judgment/adjudication, the VTA requests that the Court take judicial notice of the following: (1) the VTA’s status as a public entity; (2) Plaintiffs’ Complaint (Declaration of Jonathan Lee in Support of MSJ/MSA (“Lee Decl.”), ¶ 1, Exhibit A); (3) VTA’s answer to the Complaint (Lee Decl., ¶ 2, Exhibit B); and (4) the Traffic Investigation Report of the San Jose Police Department for the subject accident (Lee Decl., ¶ 3, Exhibit C). The first three items are proper subjects of judicial notice as court records and California statutory law (VTA’s public entity status). However, the police report is not a proper subject of judicial notice because the contents of such an item are reasonably subject to dispute. (See, e.g., People v. Medina (1990) 51 Cal.3d 870, 890.)

Accordingly, the VTA’s request for judicial notice is GRANTED IN PART and DENIED IN PART. The request is GRANTED as to the fact of VTA’s status as a public entity and Exhibits A and B attached to the Lee Declaration, and DENIED as to Exhibit C.

B. Legal Standard

“A defendant seeking summary judgment [or adjudication] must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 [internal citations omitted].)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, Cal. Prac. Guide; Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 10:241, p. 10-104, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “The moving party’s declaration and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (opposing party’s) favor.’” (Id., ¶ 10:241.20, p. 10-105, citing Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion).” (Id., ¶ 10:242, p. 10-105, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) “Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id.)

C. Analysis

With the instant motion, VTA maintains that it is entitled to summary judgment (or alternatively, adjudication of Plaintiffs’ claims) for the following reasons: (1) Decedent’s heirs, Alvarez and Ramirez, failed to file a timely claim as required by the Government Claims Act and are therefore bar from maintaining this action; (2) the Complaint seeks impermissible, non-statutory, common law theories of liability based on general negligence that are bared by statute and case law; (3) there is no triable issue of fact regarding claims that Welch was improperly trained or retained; (4) there is no triable issue of fact regarding any claimed negligence by Welch because the accident could not have been avoided and he was not negligent as a matter of law; (5) there is no triable issue of material fact regarding the claim of negligent entrustment because there is a lack of evidence regarding inadequate training, competence and lack of control; and (6) under any cause of action or theory, there is no triable issue of fact regarding causation. These assertions will be addressed in turn.

1. Satisfaction of Claims Presentation Requirement

As a threshold matter, pursuant to the Government Claims Act (the “Act”), the presentation of a claim seeking money or damages from injury to a public entity and its rejection are prerequisites to maintaining suit against the entity. (Nguyen v. Los Angeles County Harbor/UCLA Medical Center (1992) 8 Cal.App.4th 729, 732; Gov. Code, §§905, 945.4.) The Act (Gov. Code, § 810 et seq.) is a comprehensive statutory scheme that sets forth the liabilities and immunities of public entities and public employees for torts. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962.) It declares that except as otherwise provided by statute, a public entity is not liable for an injury whether such injury arises out of an act or omission of the public entity or a public employee or any other person. (Gov. Code, § 815, subd. (a).) Thus, there is no common law tort liability for governmental entities in California. (Guzman v. County of Monterey (2009) 46 Cal.4th 887.) The VTA is a special district created by statute and is by definition a “public agency” and thus subject to the provisions of the Act. (Pub. Util. Code, § 100000, et seq.)

The failure to comply with the mandatory presentation requirement is fatal to a cause of action. (City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454.) The purpose of this requirement is to “provide a public entity with sufficient information to enable it to investigate and evaluate the merits of claims, assess liability, and, where appropriate, to settle claims without the expense of litigation.” (Id. at 455.) Among other things, the claim presented to the public entity must include the name(s) of the claimants(s). (Gov. Code, § 910.) Per materials submitted by the VTA in support of its motion, only the Decedent and Garcia presented a claim; Ramirez and Alvarez did not. (See Declaration of Peter Lim in Support of VTA’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication (“Lim Decl.”), ¶¶ 14-15, Exhibit H; Declaration of Thalia Young in Support of VTA’s MSJ/MSA (“Young Decl.”), ¶ 6, Exhibit A.) Citing to Peterson v. City of Vallejo (1968) 259 Cal.App.2d 757, the VTA maintains that each heir in a wrongful death action is required to present a claim to the public entity, even when another party has timely presented a claim that provided the public entity with full knowledge of the basis of the alleged liability. Thus, it contends, because Ramirez and Alvarez did not file a claim, their causes of action are barred. Filing a claim on behalf of the Decedent, the VTA continues, does not mean that the claims were implicitly on behalf of his heirs.

In Peterson, a widow sued to recover for her own injuries and the wrongful death of her husband as the result of a car accident. The plaintiff sued the City of Vallejo and the State of California, asserting that the street at the scene of the accident was maintained in a dangerous condition. The plaintiff and her decedent husband’s surviving adult daughter also sought to recover for the wrongful death of her father, but her claims were dismissed after the trial court held that she had failed to file a timely claim with the City and State either individually or as administratrix. The appellate court affirmed the dismissal of the daughter’s claims due to her failure to file a timely claim as required, and explicitly rejected her contentions that the claim filed by her mother “was implicitly on behalf of all heirs who might be entitled to share in any eventual recovery” and “was sufficient so as to allow the State and City to fully exploit” investigation and settlement of the claim. (Peterson, 29 Cal.App.2d at 766.) In doing so, the court noted it was “generally recognized that the mere fact the governmental entity has some notice or knowledge of the accident and possible claim will not excuse failure of the claimant to file a timely claim as required by the statute.” (Id., citing McGranahan v. Rio Vista etc. School Dist. (1964) 224 Cal.App.2d 624, 629.) There was nothing before the court to indicate that the mother filed a claim on behalf of her daughter, and the court further rejected the ability of the daughter to rely on the claim of her mother on the theory that there could be only one action, and therefore one claim for wrongful death. (Id.)

Peterson appears to strongly support the conclusion that Ramirez and Alvarez’s failure to file a claim on their own behalves operates as a fatal bar to their claims. Plaintiffs nevertheless insist to the contrary, arguing that Peterson is distinguishable and relying on Lacy v. City of Monrovia (1974) 44 Cal.App.3d 152 in arguing that there is a triable issue of material fact as to whether Alvarez and Ramirez’s claims have sufficient specificity for relief.

In Lacy, an action was filed for false arrest, physical injuries and property damage by a man and his family alleging that police officers broke into their home and terrorized and humiliated them. Approximately six months prior to the lawsuit, the man presented a claim to the city for damages, which was rejected. The lawsuit that followed was filed on behalf of the man, his wife, and their three minor children by their father as their guardian ad litem. The city moved for summary judgment on the claims filed by everyone but the man, arguing that only he had properly filed a claim and that the other plaintiffs were barred by their failure to present their claims as required by statute. The trial court agreed that the wife had failed to properly present a claim, but found that the claim presented by the husband/father was sufficient to support the claims filed on behalf of his children. Thus, only the wife’s claims were dismissed. On appeal, the sole issue considered by the court was whether or not the claim presented by the husband was sufficient to support his wife’s claim. The court concluded that it was, reversing the decision of the trial court, because one of the items of damages listed in the claim set forth a claim by the wife that her husband could make only on her behalf (“Damages for… threat to my wife’s life _______ $10,000”). In the remaining portions of the claim, the husband set forth the damages he was claiming for his children. The court opined that given the contents of the claim filed with the city, the plaintiffs had made a “bona fide” attempt to comply with the claims statute, and the city not only had notice of the occurrence giving rise to the claim, but also the names of all persons seeking damages and the amount of damages claimed.

Plaintiffs contend that when they filed the claim at issue here, the VTA knew that the Decedent had died on the scene of the accident and therefore that the claim was being filed by his heirs. There was, Plaintiffs insist, a bona fide effort on their part to comply with the claims statute like the parties in Lacy, and thus the Court should reject the VTA’s assertion that the claims of Alvarez and Ramirez are barred.

The Court is not persuaded by Plaintiffs’ argument and finds Peterson to be instructive in the circumstances at bar and not Lacy. Unlike the plaintiffs in Lacy, Ramirez and Alvarez did not provide any indication in the claim filed with the VTA who was asserting the claim. There was nothing in the claim which provided notice to the VTA regarding which heirs were claiming damages as a result of the Decedent’s death. The only name that appears within the claim paperwork is the Decedent’s, and while it is true that he could not file a claim on his own behalf, the VTA had no way of knowing that it was his wife and daughter who were behind the filing and seeking damages on their own behaves. In the section which asks for a general description of the damages or losses incurred, the only individuals specifically mentioned are the Decedent and Welch, the light rail train operator. There is no language regarding damages being claimed for Ramirez and Alvarez, unlike the claim filed in Lacy.

Plaintiffs further insist that Alvarez and Ramirez substantially complied with the Government Claims Act, and therefore the VTA’s argument should be rejected. While it is true that claims statutes such as the aforementioned act are not to be used “as traps for the unwary when their underlying purposes have been satisfied” and thus courts employ a test of “substantial compliance, rather than strict compliance, in determining whether the plaintiff has met the filing requirement” (see Johnson v. San Diego Unified School Dist. (1990) 217 Cal.App.3d 692, 697), the doctrine of substantial compliance does not rescue Ramirez and Alvarez’s causes of action here. First, the doctrine cannot be used to cure total omission of an essential element from a claim. (See Loehr v. Ventura County Community College Dist. (1983) 147 Cal.App.3d 1071.) Here, the claim presented to the VTA completely omitted Alvarez and Ramirez’s names and, as stated above, the Act requires the names of the claimants. Second, the doctrine “has application only when there is a defect in form but the statutory requirements have otherwise been met.” (Nguyen, supra, 8 Cal.App.4th at 733.) As not all of the statutory requirements were met, the doctrine does not apply.

Consequently, the Court finds that Ramirez and Alvarez failed to comply with the claims presentation requirement of the Government Claims Act and therefore their claims are barred as a matter of law and only Garcia remains as a plaintiff. Accordingly, VTA’s request for summary judgment as to Alvarez and Ramirez is GRANTED.

2. Common Law Negligence

The VTA next asserts that with regard to the remaining plaintiff, Garcia, it is entitled to summary adjudication of the first and second causes of action because there is no basis to assert a general negligence claim (the basis of the “wrongful death” and “personal injury” causes of action) against a public agency under California law. It should be noted, however, that the second cause of action is not being asserted by Garcia, who is not alleged to be a family member of the Decedent and thus has no standing to do so. (See Cheyanna M. v. A.C. Nielsen Co. (1998) 66 Cal.App.4th 855, 865 [explaining that “standing to bring a wrongful death action must be determined in accordance with the laws of intestate succession”]; see Code Civ. Proc., § 377.60, subd. (a) [standing to sue for wrongful death is conferred to “[t]he decedent’s surviving spouse, domestic partner, children, and issue of deceased children, or, if there is no surviving issue of the decedent, the persons, including the surviving spouse or domestic partner, who would be entitled to the property of the decedent by intestate succession”].)

California statute, particularly Government Code section 815, subdivision (a), prohibits a public entity’s direct liability in tort except as specifically provided by statute. (See Caldwell v. Montoya (1995) 10 Cal.4th 972, 980.) Under the Act, all governmental liability is statutory, except as required by statute and federal constitutions. (Nestle v. City of Santa Monica (1971) 6 Cal.3d 920, 932.) Plaintiffs do not dispute that they have not pleaded a statutory basis for their first and second causes of action, nor that common law negligence against a public entity is not permissible. However, they identify such bases in their opposition, and implore the Court to provide them with leave to amend their claims to correct this deficiency. While it is true that where a complaint is deficient a court may treat a motion for summary judgment as a motion for judgment on the pleadings (see American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1118 [explaining that a defendant’s motion for summary judgment/adjudication “necessarily includes a test of the sufficiency of the complaint” and its legal effect is the same as a demurrer or motion for judgment on the pleadings”]) and provide the opposing party with an opportunity to amend (see Hobson v. Raychem Corp. (1999) 73 Cal.App.4th 614, 625), the VTA continues that even if these claims were properly stated, it would still be entitled to summary adjudication of them. In the interest of judicial economy, the Court will address the substantive merits of the VTA’s arguments regarding Plaintiffs’ claims.

3. Negligence By Welch

Part of Plaintiffs’ claims against Welch and VTA are predicated on the assertion that Welch did not receive proper training (Complaint, ¶ 18) in the operation of a light rail train. VTA maintains that he did, and presents evidence demonstrating the following:

 Upon being hired as a light rail operator, Welch underwent an initial 10 week training course which included classroom time, written exams, and the operation of light rail vehicles with trainers (VTA’s Separate Statement of Undisputed Material Facts in Support of MSJ/MSA (“UMF”) Nos. 24;
 During the foregoing period, Welch passed all of his exams, receiving 100% on eight of 11 of them (UMF No. 27);
 Welch was the subject of random spot check examinations/observations to determine if he was in compliance with operating procedures and met all requirements in the eight checks that preceded the accident (UMF Nos. 26, 30);
 From the date of his hiring (February 2014) to the date of the accident, June 20, 2015, Welch had no accidents which were deemed to be preventable (UMF No. 72);
 Welch’s prior accident on May 29, 2015 was deemed “non-preventable” because the vehicle driver drove through a red light (UMF No. 58).

VTA further argues that Welch operated the light with sufficient care when the accident occurred and that the collision was not the result of a lack of training, competence, attention, speed, right of way, lack of control or operation of the light rail by Welch, as alleged by Plaintiffs. According to the evidence submitted by the VTA, the chronology of events culminating in the subject collision can be described thusly: The evening of the accident, Welch was the only person on the train. (UMF No. 33.) The speed limit for the light rail where the accident occurred was 35 mph and Welch had his own signals that pertained to the train that coordinated with the normal traffic signals on Capitol Avenue. (UMF No. 35.)

Welch saw the Decedent’s vehicle waiting for the traffic light at Madden Avenue as the train approached the intersection of Capitol and Madden. (UMF No. 36.) When he first saw the car, which was stopped at a right light, the train’s speed was 35 mph. (UMF Nos. 37, 38.) Left-hand turns were not permitted at the intersection in the Decedent’s direction, and at the signal a large no left U-turn sign was posted. (UMF Nos. 39, 40.) Welch observed the vehicle moving and was right at Madden when it made its turn. (UMF Nos. 41, 42.) The Decedent’s vehicle received a parallel green signal and executed an illegal left turn at the very last second before contact. (UMF Nos. 44.) Welch put the train into master braking and the right front portion of the train made contact with the driver’s side of the vehicle. (UMF Nos. 45, 46.) Welch simultaneously sounded the high horn, the loudest horn on the train, which ultimately came to a stop on the other side of the intersection. (UMF Nos. 48, 53.) Subsequently, the investigating officer determined that the accident was caused by the Decedent and his illegal turn and it was deemed non-preventable by VTA personnel. (UMF Nos. 54, 56.)

The foregoing evidence, VTA explains, clearly establishes that Welch was not negligent when operating the light trail train prior to and when it struck the Decedent’s vehicle, and that the collision was the result of the Decedent’s own conduct- specifically making an illegal left turn onto across the light rail tracks.

While VTA may be correct that Welch did not operate the light rail train negligently at the time of the accident, their motion ignores a critical component of Plaintiffs’ negligence claim. The negligence claim is not predicated solely on Welch’s allegedly negligent conduct, but also on the VTA’s alleged failure to provide adequate signage, warning lights, gates and other safety designs at the site of the collision which would have purportedly prevented it from happening in the first place. (Complaint, ¶ 17.) The VTA does not address at all the sufficiency of the signage or safety designs at the subject intersection and thus fails to meet its initial burden on this claim, as summary adjudication of a cause of action is only permitted if it completely disposes of that claim. (Code Civ. Proc., § 437c, subd. (f)(1).) Thus, VTA is not entitled to summary adjudication of the first cause of action for negligence, and its request for summary judgment as to Garcia is DENIED. However, the Court will treat the motion for summary judgment/adjudication as a motion for judgment on the pleadings as to the first cause of action (see above) and GRANT the motion with 10 days’ leave to amend for Plaintiff Garcia to adequately plead a claim for negligence against the VTA.

4. Negligent Entrustment by the VTA

The VTA continues that it is entitled to summary adjudication of Plaintiffs’ remaining claim for negligent entrustment because there was nothing which suggested to the VTA that Welch should not have been permitted to operate a light rail vehicle at the time of the accident.

As the VTA explains, California law recognizes the theory that an employer can be liable to a third party for negligently hiring, supervising or retaining an unfit employee. (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) This is the theory underlying Plaintiffs’ third cause of action. (Complaint, ¶¶ 33-34.) Negligence liability will be imposed on an employer if it “knew or should have known that hiring the employee created a particular risk of hazard and that particular harm materializes.” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139.) “A claim that an employer was negligent in hiring or retaining an employee-driver rarely differs in substance from a claim that an employer was negligent in entrusting a vehicle to the employee. Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a claim that an employer was negligent in hiring or retaining that person as a driver …. That same awareness underlies a claim for negligent entrustment.” (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1157.) The specific elements of a claim for negligent entrustment are as follows: (1) the driver of the vehicle was negligent; (2) the defendant owned the vehicle operated by the driver; (3) the defendant knew or should have known that the driver was incompetent or unfit to drive the vehicle; (4) the defendant permitted the driver to drive the vehicle and the driver’s incompetence or unfitness to drive was a substantial factor in causing the plaintiff’s harm. (CACI No. 724; see also Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 341.)

The VTA cites to the evidence previously cited regarding Welch’s qualifications and operation of the train at the time of the accident to establish the absence of a necessary element of this- negligence by Welch. It further cites to the Declaration of Diego Carrillo, a light rail training supervisor, who explains that there is no evidence that it negligently hired, trained or continued to employ Welch, or negligently entrusted any light rail vehicles to him to operate. (Declaration of Diego Carrillo in Support of VTA’s MSJ/MSA (“Carrillo Decl.”), ¶ 9.) He notes that during training, Welch passed all of his exams, as he did during his recertification in 2014. (Id.) He further states that there is no evidence that the VTA failed to use reasonable care or had knowledge that Welch would drive the vehicle unreasonably or in an unsafe manner. (Id., ¶ 10.) He continues that in his opinion, Welch was properly trained to operate the train and was fully competent at the time of the subject accident, with his attention, speed, compliance with train signals and right-of-way as well control of the vehicle appropriate and in keeping with his training and experience. (Id., ¶ 12.) Welch, Carrillo explains, did not have sufficient time or distance, or visual or auditory clues, to react to the movements of the vehicle making the illegal turn in order to prevent the accident or lessen the damage. (Id., ¶ 13.) Per the video of the accident from a camera mounted on the train, the car began to turn at 7:37 and 38 seconds, and Welch applied maximum breaking at 7:37 and 38 seconds and impact occurs one second later. (Carrillo Decl., ¶ 13.) Welch was given the right-of-way because he had a vertical train signal display for his direction indicating he could proceed across the intersection. (Id., ¶ 15.) Welch, Carrillo concludes, acted appropriately considering the circumstances.

The Court finds that the VTA has met its initial burden on the third cause of action for negligence entrustment by demonstrating that Welch was not negligent in the operation of the light rail train at the time of the accident and that Welch was properly trained and entrusted with operation of the vehicle at that time. The burden therefore shifts to Plaintiff Garcia to raise a triable issue of material fact. In this regard, she utterly fails to do so, completely neglecting to address this cause of action in her opposition, and thus impliedly conceding the lack of merit in this claim. Consequently, the VTA’s request for summary adjudication of the third cause of action for negligence entrustment is GRANTED.

III. The City’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

The City’s motion for summary judgment, or in the alternative, summary adjudication, is unopposed. The motion is GRANTED.