Maria Luisa Hills v. State of California

Item 1 2016-00205417-CU-PA

Maria Luisa Hills vs. State of California

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Woodbridge, Catherine

Effective September 23, 2019, official court reporters will not be available in Departments 53 and 54, with exceptions listed in the Court’s Policy Regarding Availability and Unavailability of Official Court Reporters. Additional information regarding this policy can be found on the Court’s website at www.saccourt.ca.gov.

Defendant State of California, by and through California Department of Corrections and Rehabilitation’s (“CDCR”) motion for summary judgment or, in the alternative, summary adjudication against Plaintiffs Maria Luisa Hills and Barry Hills’ operative complaint is ruled upon as follows.

In this action, Plaintiffs Maria Luisa Hills and Barry Hills (collectively, “Plaintiffs”) allege that CDCR, the City of Folsom, and the County of Sacramento created a dangerous condition of public property by closing a sidewalk and directing her to walk/pass into the roadway where she was struck by a car driven by Defendant Carolyn Vodoklys. Correctional Officer Nader Saca (“Officer Saca”) was supervising the CDCR inmate work crew at the time of the incident.

Plaintiffs allege three causes of action against CDCR. CDCR moves for summary adjudication of each of the three causes of action alleged against them: (1) the first cause of action for dangerous condition of public property on the basis that there is no dangerous condition pursuant to Government Code sections 830(a) and 835; (2) the second cause of action for negligence on the basis that there is no duty and defendant is immune from liability pursuant to Government Code sections 815.2(b), 830.8, 844.6 (a), and 845; and (3) the third cause of action for loss of consortium on the basis that there is no statutory basis for liability identified, no duty exists, and CDCR is immune

from liability pursuant to Government Code sections 815.2(b), 830.8, 844.6(a), and

845. CDCR alleges that the loss of consortium claim is derivative of Ms. Hills’ claims and her dangerous condition and negligence claims fail, which necessarily requires that Mr. Hills’ loss of consortium claim also fails.

CDCR’s motion is opposed by Plaintiffs, Defendants/Cross-Complainants Carolyn Vodoklys and Steven Vodoklys, and opposed in part by the City of Folsom.

Defendant CDCR’s request for judicial notice is granted. Defendant City of Folsom’s request for judicial notice is granted.

Legal Standard

In evaluating a motion for summary judgment or summary adjudication the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal.App.4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings. The Court cannot consider an unpleaded issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a defendant’s motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, quoting Code of Civil Procedure § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advance, Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. ( Aguilar, 25 Cal.4th at 853-855.) Further, the initial burden requires a showing that the plaintiff “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make “an affirmative showing” in support of its motion. (See Aguilar, 25 Cal.4th at 854-855 n.23; Addy v Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.)

the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, 25 Cal.4th at 843.)

Summary adjudication requires disposition of an entire cause of action or claim for damages. (Code Civ. Proc. § 437c(f)(1); Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1256.)

Dangerous Condition of Public Property

In the first cause of action, Plaintiffs allege that CDCR created a dangerous condition on Baldwin Dam Road in the manner it performed weed abatement, including its use of a “barrier vehicle” that obstructed the use and visibility of the roadway.

Plaintiffs allege that “[a] CDCR inmate work crew was performing work with power equipment on grass and weeds adjoining the roadside and upon the road. This work closed off, prevented the use of, obstructed, and interfered with the use of the public road otherwise used by pedestrians to safely navigate Baldwin Dam Road.” (FAC ¶
12.) Ms. Hills was therefore “forced to use the center portion of the narrow road.” (FAC

¶ 13.) “There were no measures for the protection of life and property, including traffic and pedestrian safeguards such as barriers and warning devices necessary for safety of the general public at or about this inmate work zone.” (FAC ¶ 13.) Defendants “created a dangerous condition on public property by, inter alia, preventing MARIA LUISA HILLS from using, obstructing from, and interfering with the use of Baldwin Dam Road, a public road, while failing to take measures for the protection of life and property, including traffic and pedestrian safeguards, such as barriers and warning devices necessary for safety of the general public at or about this inmate work zone.” (FAC ¶ 15.) Defendants created a trap by “negligently directing MARIA LUISA HILLS and the car driven by VODOKLYS into the same space at the same time without any precautions…” (FAC ¶ 15.)

Government Code Section 835 sets out the exclusive framework under which a public entity can be held liable for injuries caused by a condition of its property. (Metcalf v. County of San Joaquin (2008) 42 Cal.4th 1121, 1129.)

Government Code Section 835 provides:

Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or
(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

foreseeable that it will be used. (Gov. Code § 830(a); Van Kempen v. Hayward Area Park (1972) 23 Cal.App.3d 822, 826.)

“Condition of property” has been defined in at least three ways.

First, a dangerous condition of public property may arise from a public improvement that has become physically damaged, deteriorated, or defective to a degree that makes it potentially dangerous to reasonably foreseeable users, even when used with due care. (Bonanno v. Central Contra Costa Transit Auth. (2003) 30 Cal.4th 139, 148.) This category includes, for example, a sharp drop at the edge of a highway (Murrell v. State of ex rel Dep’t of Pub. Works (1975) 47 Cal.App.3d 264), a boulevard stop sign that was obscured by foliage (De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739), and an unprotected live wire lying at the highway’s edge (Chavez v. County of Merced (1964) 229 Cal.App.2d 387).

Second, a dangerous condition of public property has also been defined as “‘the interrelationship of its structural or natural features, or the presence of latent hazards associated with its normal use.’ [Citation.]” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 149; see also id. at 151 (finding that a bus stop’s location constituted a dangerous condition because it “caused users of the bus stop to be at risk from the immediately adjacent property”).) Evidence of a lack of similar accidents at a location indicates that the location does not present a significant risk of injury. (See Antenor v. City of Los Angeles (1985) 174 Cal.App.3d 477; McKray v. State (1977) 74 Cal.App.3d 59; Fielder v. City of Glendale (1977) 71 Cal.App.3d 719.) In Fielder, the court said: “We hold that, in the first instance, it is for the court to determine whether, as a matter of law, a given defect is not dangerous. This is to guarantee that cities do not become insurers against the injuries arising from trivial defects.” (Fielder v. City of Glendale, 71 Cal.App.3d at 734.)

Third, in situations where a third party is the immediate cause of a plaintiff’s injury, public liability will only be imposed if there is a defect in the physical condition of the property and that defect increased or intensified the danger posed to due care users by negligent third parties. (Salas v. Dept. of Transportation (2011) 198 Cal.App.4th 1058, 1070; Cerna v. City of Oakland (2008)161 Cal.App.4th 1340, 1348.) “The status of a condition as ‘dangerous’ for purposes of the statutory definition of public property does not depend on whether the plaintiff or other persons were actually exercising due care but on whether the condition of the property posed a substantial risk of injury to persons who were exercising due care.” (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 751; id. at 759-761 (road and adjacent gravel area configuration created dangerous condition because drivers were often induced to leave the road and enter the gravel area where they posed a hazard to persons who had parked there).)

“The existence of a dangerous condition is ordinarily a question of fact; however, it can be decided as a matter of law if reasonable minds can come to only one conclusion concerning the issue.” (City of San Diego v. Superior Court (2006) 137 Cal.App.4th 21, 28.)

CDCR moves for summary adjudication on the ground that no dangerous condition exists because there is no physical condition (i.e. “defect”) of the property that increased or intensified Plaintiff’s risk of injury, there is no physical characteristic of Baldwin Dam Road that proximately caused her injury because the inmate work crew was not on the roadway and there was enough room for a vehicle to safely pass Ms.

Hills on the left, Carolyn Vodoklys did not use the road in a reasonably foreseeable and careful manner, and CDCR had no actual or constructive notice of the dangerous condition in time to have taken protective measures.

In support, CDCR points to supporting UMFs, including the following: (1) a CDCR inmate work crew was performing weed abatement along Baldwin Dam Road pursuant to a contract with the City of Folsom (UMFs 3, 4); (2) Officer Saca parked a CDCR van and City of Folsom trailer on the right side of the road, placed orange cones around the van and trailer, and marked off the boundaries where the inmates were working (UMFs 8, 9); (3) Ms. Hills was walking on Baldwin Dam Road, came upon the crew, asked Officer Saca if it was okay to pass, and Officer Saca responded yes (UMFs 11-15); (4) Ms. Hills walked past the CDCR van and did not walk to the right-side of the road because she was apprehensive about inmates (UMFs 19, 20); (5) Ms. Hills was in the right-hand lane near the middle of the lane when she was hit by a car driven by Carolyn Vodoklys (“Ms. Vodoklys”) (UMFs 22, 24); (6) there was enough room to the left of Ms. Hills for a car to pass without hitting her (UMF 23); (7) Ms. Vodoklys admits she was distracted by the inmates and did not see Ms. Hills before impact, even though there were no visual obstructions (UMFs 29-31.)

Plaintiffs dispute several of the facts presented by CDCR. In particular, whether traffic control at the time was to be performed by City of Folsom or CDCR (Pls’ Response to UMF 5); the precise nature of the conversation between Ms. Hills and Officer Saca prior to her passing the CDCR van (Pls’ Responses to UMFs 14-18); whether Ms. Hills did not walk on the right side of the road because she was apprehensive about inmates or whether it was to avoid debris from the inmates’ work (Pls’ Responses to UMFs 20, 21); and whether the CDCR van created a visual obstruction for Ms. Vodoklys (Pls’ Responses to UMFs 29, 31).

On reply, CDCR contends that the reason Ms. Hills walked in the middle of the road was because of her apprehension about the inmates, and not about the weed whacking. (UMFs 20, 21.) CDCR contends that nowhere in the FAC do Plaintiffs contend that a “barrier vehicle” contributed to any dangerous condition on the property and, as CDCR asserts, this argument was raised for the first time in opposition to summary judgment. CDCR contends that the facts Plaintiffs contend to be disputed are not actually disputed. CDCR argues that Ms. Hills admits she testified the inmates were not on the roadway (Pls’ Response to UMF 13) and that she was not concerned about debris hitting her from the active weed whacking (Pls’ AMF 47).

Based on the record before the Court, the Court cannot determine that, as a matter of law, a trier of fact could not infer from the evidence put forth by both CDCR and Plaintiffs that a dangerous condition of public property existed, the injury was proximately caused by the dangerous condition, the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition under Government Code section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.

As explained above, the existence of a dangerous condition is ordinarily a determination of fact; it is only a question of law if reasonable minds can only come to one determination of the issue. (See, e.g., Bonanno v. Contra Costa Transit Authority

(2003) 30 Cal.4th 139, 148.) “A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial, or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov. Code § 830.2.)

A trier of fact could infer that the manner in which the weed abatement was conducted created a dangerous condition and it was foreseeable that pedestrians and/or motor vehicle drivers would continue to use the road in a manner that may lead to injury. This is further exacerbated by the presence of Officer Saca, presumably monitoring the roadwork and affirmatively allowing both pedestrians and vehicles to enter the roadway itself, at the same time. As noted, § 835 prescribes the conditions under which a public entity may be held liable for injuries caused by a dangerous condition of public property. (See Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 829.) While a public entity is not, without more, liable under § 835 for the harmful conduct of third parties on its property, (Hayes v. State of California (1974) 11 Cal.3d 469, 472.) if a condition of public property “creates a substantial risk of injury even when the property is used with due care” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 718), a public entity “gains no immunity from liability simply because, in a particular case, the dangerous condition of its property combines with a third party s negligent conduct to inflict injury.” (Id. at pp. 718-719.)

CDCR’s argument that it must be a physical condition of property that creates the dangerous condition, but this view is overly simplistic. For example in Vinson v. Ham Bros. Constr., Inc. (1970) 7 Cal.App.3d 990, an unprotected street excavation was found to constitute a dangerous condition. The court found: “The right to obstruct a public street to construct necessary public improvements carries with it a corresponding duty to erect adequate barriers, lights and warning devices to protect those who travel the street from injury. When erected, the sufficiency of those barriers, or lights or other warning signals is a question of fact for jury determination.” (Id. at 996, internal citation omitted.) Here, CDCR caused an obstruction to the roadway and surrounding areas, and it is a question of fact whether CDCR adequately warned of the condition. While CDCR argues a law enforcement officer does not have an affirmative obligation to intervene, here it is undisputed that both Ms. Hills and Ms. Vodoklys looked to him for consent or permission to enter the roadway prior to doing so.

Additionally, CDCR’s argument overlooks that it may be the location of the property or interplay of the property and third party conduct that results in the dangerous condition. CDCR cites to Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1183, which states: “Third party conduct by itself, unrelated to the condition of the property, does not constitute a ‘dangerous condition’ for which a public entity may be held liable. There must be a defect in the physical condition of the property and that defect must have some causal relationship to the third party conduct that injures the plaintiff.” Here, however, Ms. Hills was walking in the middle of the road as a result of the weed maintenance activity taking place on both sides of the road.

CDCR contends that “[w]hether weed whacking could cause injury or damage is not material because Ms. Hills was not injured by any debris from the weed whacking

activity. Moreover, she admits that the only reason she walked in the middle of the road was her apprehension of inmates, not their weed whacking activity,” citing to UMFs 20, 21 and Pls’ AMF 47.)

However, the cited testimony relied on by CDCR in support of UMF 20 is a portion of the deposition testimony of Ms. Hills, which states:

Q. Was there anything that prevented you from walking to the side of the road in front of the van on the right side? A. The workers were there.

Q. And what prevented you from working [sic] over towards the right side of the road?

A. I was a little apprehensive.

This testimony does not state that Ms. Hills was apprehensive about the inmates’ presence alone, or whether it was the inmate work and potential for flying debris that caused Ms. Hills to be “a little apprehensive.”

Additionally, AMF 47 states: “From her position to the right of the center line, Maria was not concerned that debris from the active weed whacking on the left-hand shoulder would hit her.” CDCR does not dispute this fact. However, this fact does not support the conclusion that Ms. Hills was walking in the middle of the road due to apprehension of the inmates. It also overlooks AMF 44: “In response to the risk of being struck by weedwhacker propelled projectiles as she walked down Baldwin Dam Road, Maria did not walk her customary route down the left shoulder.” CDCR disputes this fact, and cites to page 72, lines 6 through 21, of Ms. Hills’ deposition testimony. That testimony does not create a dispute of fact. In fact, the same page includes the following testimony at lines 1 to 5:

Q. Okay. Did any of the debris from the weed whackers hit you or kick up –

A. No.

Q. -and cause you any problem?
A. No. That’s why I was away from where it was.

This testimony further supports that Ms. Hills deviated from her normal walking route to enter the traffic lane to avoid the active weed whacking on the side of the road. “[P] ublic liability lies under section 835 only when a feature of a public property has ‘increased or intensified’ the danger to users from third party conduct.” (Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 155.) As stated above, in considering the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

For these reasons, there are disputes of fact that defeat summary adjudication on this cause of action. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter

Group 2009) ¶ 10:95.1, p. 10-35 (rev. #1, 2009) (the inclusion of a material fact in the separate statement concedes the materiality of whatever facts are included).)

Defendants/Cross-Complainants Carolyn Vodoklys and Steven Vodoklys also filed an opposition to CDCR’s motion. However, given the analysis above, the Court need not specifically address the opposition. City of Folsom did not oppose CDCR’s motion on this issue. The Court notes that despite CDCR’s contention to the contrary, “any adverse party may oppose the [summary judgment] motion, and, ‘where appropriate,’ must present evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’” (Aguilar, 25 Cal.4th at 843, citing Code Civ. Proc. § 437c(b).)

As set forth above, CDCR cannot establish that, based on undisputed facts, it is entitled to summary adjudication of Plaintiffs’ cause of action for dangerous condition as a matter of law.

Negligence

Defendant CDCR alleges that Plaintiffs’ negligence claim fails because Plaintiffs cannot establish a duty and, even if they could, CDCR is immune from liability pursuant to Government Code sections 815.2, 830.8, 844.6, and 845. CDCR contends that “a person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1128-1129.) A special relationship may exist between a law enforcement officer and an individual if there is “an affirmative act which created or increased a risk of harm to plaintiff, an omission or failure to act after a promise was made to plaintiff, or the creation of a special dependency relationship in which plaintiff relied on official conduct.” (Lehto v. City of Oxnard (1985) 171 Cal.App.3d 285, 290, citing Williams v. State of California (1983) 34 Cal.3d 18, 23-24.)

CDCR argues: “In this case Ms. Hills admits that she walked down the middle of Baldwin Dam Road because she was afraid of the inmates. [UMF 20.] The inmate work crew was not on the roadway. [UMF 13.] Ms. Hills’ fear is a psychological state that is beyond the control of Officer Saca or the inmate work crew. The work crew was working as they were authorized to do providing a public benefit under the supervision of a trained prison guard. There was no peril in walking nearing the work crew and away from the path of vehicles. Office Saca did not create the peril, did not affirmatively contribute to, increase, or change the risk which otherwise existed. As a result, there is not duty giving rise to liability.” (Mot. at 23.) CDCR further claims: “Although plaintiffs claim that Officer Saca gave authorization that Ms. Hills could safely pass through the inmate work zone (FAC ¶ 32), Ms. Hills’ testimony rebuts this assertion. According to Ms. Hills, she simply asked Officer Saca if it was ‘okay to pass.’ [UMF 14.] He responded yes. [UMF 15.] They had no other conversation. [UMF 16.] Officer Saca never advised Ms. Hills that it was safe to pass and Ms. Hills did not ask if it was safe to pass. [UMF 17, 18.] Therefore, it cannot be inferred that Ms. Hills detrimentally relief on Officer Saca’s assurance of safe passage on Baldwin Dam Road.” (Mot. at 24.)

In support of its argument, CDCR cites to many of the same UMFs as set forth in the first cause of action for dangerous condition.

The Court need not remind the parties that when considering what inferences to draw, it must analyze the evidence in the light most favorable to the party opposing the motion for summary judgment. (Aguilar, supra, 25 Cal.4th at p. 843.) An issue of material fact may not be resolved based on inferences if contradicted by other inferences or evidence. (§ 437c, subd. (c); Aguilar, at p. 856.)

Plaintiffs allege that CDCR’s employee negligently exercised “discretion and control” over pedestrian and vehicular traffic traveling along Baldwin Dam Road. Plaintiffs claim that liability is not predicated on CDCR’s failure to intervene for the benefit of Ms. Hills but instead upon its creation of an unreasonable risk of harm to her. (See Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 707-709.) “A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship which gives rise to a duty to act.” ( Williams v. State of California (1983) 34 Cal.3d 18. 23.)

Here, there is a dispute of fact as to whether the manner in which the weed abatement was being conducted created or increased the risk of harm to Ms. Hills, and whether the exchange between Ms. Hills and Officer Saca, as well as between Officer Saca and Ms. Vodoklys, created reasonable reliance on the part of Ms. Hills and/or Ms. Vodoklys that the road was safe to pass based on their conversations with Officer Saca. CDCR does not dispute AMFs 76-81, which Plaintiffs allege set forth the conditions that created an enhanced danger.

Further, the Court does not see a basis for immunity. CDCR alleges that Government Code section 820.2 immunizes a public employee for any injury result from an act or omission that was “the result of the exercise of discretion vested in him, whether not such discretion is abused.” (Gov. Code § 815.2(a).) CDCR contends that Officer Saca’s decision not to close the gate to Lew Howard Park is entitled to discretionary immunity. CDCR also claims Officer Saca is immune based on his decision regarding what signs or lack of signs to use at the location, citing Government Code section

830.8. CDCR points to Government Code section 845 as providing immunity for failure to provide police services, and section 844.6(a)(1) for immunity for any injury caused by a prisoner.

The Court is not persuaded by any of the above immunity arguments. Sections 820.2 and 815.2 apply to “basic policy choices which constitute an exercise of discretion by a coordinate branch of government and therefore should ‘remain beyond the range of judicial inquiry.’” (Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 141, quoting Johnson v. State of California (1968) 69 Cal.2d 782, 783.) Indeed, under section 820.2, immunity is reserved for those basic policy decisions which have been expressly committed to coordinate branches of government, and as to which judicial interference would thus be unseemly. Caldwell v. Montoya, (1995) 10 Cal. 4th 972,

980. Generally, there is no basis for immunizing lower level decisions that merely implement a basic policy already formulated. The scope of the discretionary act immunity should be no greater than is required to give legislative and executive policymakers sufficient breathing space in which to perform their vital policymaking functions. As noted in Johnson, supra, immunity applies only to deliberate and considered policy decisions, in which a “[conscious] balancing [of] risks and advantages . . . took place. The fact that an employee normally engages in ‘discretionary activity’ is irrelevant if, in a given case, the employee did not render a considered decision. [Citations].” ( Id. at p. 795, fn. 8.) Thus, as applied here, when setting up the weed abatement operations, Office Saca has a “job-related duty” to

“exercise reasonable care in protecting the staff, the public and the inmates” because his “job is public safety,” a fact CDCR does not dispute. (AMF 17, 18.) Officer Saca’s management of the project, including whether he closed the gate to the park, is not a basic policy choice amounting to an exercise of discretion by a governmental entity.

Further, section 830.8 is similarly unavailing. “The broad discretion allowed a public entity in the placement of road control signs is limited, however, by the requirement that there be adequate warning of dangerous conditions not reasonably apparent to motorists. Thus, where the failure to post a warning sign results in a concealed trap for those exercising due care, section 830.8 immunity does not apply.” (Kessler v. Cal. (1988) 206 Cal.App.3d 317, 321, internal citations omitted.)

Section 845 is distinguishable because Plaintiffs do not allege that Officer Saca failed to provide police services, but that the manner in which the weed abatement was performed and Officer Saca’s role created a dangerous condition and CDCR was negligent.

Lastly, section 844.6 does not apply because Plaintiffs do not allege that the injury was caused by a prisoner. Even if it could be held to apply [and it does not] nothing in Gov. Code § 844.6 prevents recovery from the public entity for an injury resulting from the dangerous condition of public property under Gov. Code §§ 830-840.6. Gov. Code § 844.6(d) provides that (1) nothing in Gov. Code § 844.6 exonerates a public employee from liability for injury proximately caused by his or her negligent or wrongful act or omission; and (2) the public entity may but is not required to pay any judgment, compromise, or settlement, or may but is not required to indemnify any public employee, in any case where the public entity is immune from liability under Gov. Code § 844.6.

Given the Court’s conclusion, it need not reach the oppositions filed by Defendant City of Folsom and Defendants/Cross-Complainants Carolyn Vodoklys and Steven Vodoklys.

For the reasons set forth above, summary adjudication in favor of CDCR against Plaintiffs’ second cause of action for negligence is denied.

Loss of Consortium

Defendant CDCR alleges that Plaintiff Barry Hills’ claim of loss of consortium is derivative of Ms. Hills’ claims for dangerous condition of public property and negligence. Defendant CDCR claims that since Ms. Hills’ claims fail, so too must her husband’s claim.

Since summary adjudication was denied above, it is denied as to CDCR’s motion for summary adjudication of this derivative claim.

Conclusion

For the foregoing reasons, summary adjudication is DENIED as to each cause of action. Therefore, summary adjudication is likewise DENIED.

The Court overrules CDCR’s objection no. 15, related to Plaintiffs’ AMF 44. The Court notes that the original objection cited incorrect evidence, but CDCR filed an errata on

September 23, 2019, after the originally scheduled hearing date, correcting the evidence cited.

Given the Court’s ruling, the Court need not rule on additional objections to evidence. (See Code Civ. Proc. 437c(q).)

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

Item 2 2016-00205417-CU-PA

Maria Luisa Hills vs. State of California

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication

Filed By: Nelson, Gregory A.

Defendant City of Folsom’s (“Folsom”) motion for summary judgment or, in the alternative, summary adjudication against the Plaintiffs’ operative complaint is ruled upon as follows.

In this action, Plaintiffs Maria Luisa Hills and Barry Hills (collectively, “Plaintiffs”) allege that CDCR, the City of Folsom, and the County of Sacramento created a dangerous condition of public property by closing a sidewalk and directing her to pass into the road where she was struck by a car driven by Defendant Carolyn Vodoklys. Correctional Officer Nader Saca (“Officer Saca”) was supervising the CDCR inmate work crew at the time of the incident.

Plaintiffs allege the following causes of action against Folsom: (1) dangerous condition, and (2) loss of consortium.

Folsom moves for summary adjudication alleging:

(1) Plaintiffs’ first cause of action for dangerous condition if public property fails because there is no dangerous condition (citing Government Code sections 830(a) and 835) and Plaintiffs’ related allegation that Folsom has a mandatory duty pursuant to Folsom Municipal Code fails, as do Plaintiffs’ prayers for the damages below because Folsom Municipal Code section 12.20.140, et seq. does not apply to weed abatement or to Folsom:

(a) the sixth prayer for relief for an order fails because the work being performed did not constitute an encroachment, Folsom is not required to obtain an encroachment permit, and Folsom is immune from liability (citing Government Code sections 815, 815.2(b), and 820.2); and

(b) the seventh prayer for relief for attorney’s fees and costs fails because Plaintiffs’ action does not satisfy the requirements of Code of Civil Procedure section 1021.5; and

(2) Plaintiffs’ fourth cause of action for loss of consortium fails because there is no

statutory basis for liability identified, no duty exists, and defendant is immune from liability (citing Government Code sections 815, 815.2(b), 830.8, 844.6(a), and 845). Folsom additional alleges that the loss of consortium claim by Plaintiff Barry Hills is derivative of Plaintiff Maria Hills’ claim, and since Ms. Hills’ cause of action for dangerous condition of public property fails, so must her husband’s claim for loss of consortium.

The motion is opposed by Plaintiffs, as well as by Defendants/Cross-Complainants Carolyn Vodoklys and Steven Vodoklys.

Folsom’s request for judicial notice is granted. Plaintiffs’ request for judicial notice is granted.

Legal Standard

In evaluating a motion for summary judgment or summary adjudication the Court engages in a three-step process.

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, quoting C.C.P § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advance, Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, 25 Cal.4th at 853-855.) Further, the initial burden requires a showing that the plaintiff “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense

to it. (Code Civ. Proc. § 437c(p); see generally Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, 25 Cal.4th at 843.)

Summary adjudication requires disposition of an entire cause of action or claim for damages. (Code Civ. Proc. § 437c(f)(1); Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1256.) It further bears noting that the statute is not intended to be available as a means of piecemeal disposition of cases. This is expressed by subdivision (f)(1), which was enacted to preclude, except as expressly provided, motions for summary adjudication of “issues”; § 437(c) does not permit adjudication or summary judgment as to isolated parts of a prayer for relief. “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.” (C.C.P. § 437c(f).) “Cause of action” means

” ‘a group of related paragraphs in the complaint reflecting a separate theory of liability

.’ ” (Lilienthal & Fowler v. Superior Court, (1993)12 Cal. App. 4th 1848, 1853, italics in original.) The appellate court found the clear intent of Code of Civil Procedure section 437c, subdivision (f) is ” ‘to stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or defense.’ ” (12 Cal. App. 4th at p. 1853.) Code of Civil Procedure section 437c, subdivision (f) was meant to “eliminate summary adjudication motions that would not reduce the costs and length of litigation.” (12 Cal. App. 4th at p. 1853.)

Dangerous Condition

Plaintiffs allege that “[a] CDCR inmate work crew was performing work with power equipment on grass and weeds adjoining the roadside and upon the road. This work closed off, prevented the use of, obstructed, and interfered with the use of the public road otherwise used by pedestrians to safely navigate Baldwin Dam Road.” (FAC ¶ 12.) Ms. Hills was therefore “forced to use the center portion of the narrow road.” (FAC

Government Code Section 835 provides:

Government Code § 830(a) defines “dangerous condition” as a “condition of property” that creates a substantial (as opposed to a minor, trivial or insignificant) risk of injury when such property is used with due care in a manner in which it is reasonably foreseeable that it will be used. (Gov. Code § 830(a); Van Kempen v. Hayward Area Park (1972) 23 Cal.App.3d 822, 826.)

“Condition of property” has been defined in at least three ways.

care but on whether the condition of the property posed a substantial risk of injury to persons who were exercising due care.” (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 751; id. at 759-761 (road and adjacent gravel area configuration created dangerous condition because drivers were often induced to leave the road and enter the gravel area where they posed a hazard to persons who had parked there).)

Folsom moves for summary adjudication on the ground that no dangerous condition exists because there is no physical condition of the property that increased or intensified Plaintiff’s risk of injury; Folsom is immune from liability for failing to install barriers near the “inmate work zone”; any potential “condition of property,” if found, did not pose a substantial risk of injury when the property was used with due care in a reasonably foreseeable manner; and that the “trap” exception does not apply because there is no dangerous condition. Folsom also claims that Plaintiffs’ mandatory duty claim is actually a dangerous condition claim; the Folsom Municipal Code does not create a mandatory duty for Folsom; cutting weeds does not constitute an encroachment; and Plaintiffs’ prayer for order and fees and costs should be denied.

In support of its motion on this issue, Folsom cites to 27 UMFs, including the following:

(1) on June 2, 2016, a work crew from the California Department of Corrections (“CDCR”) inmate work crew was performing weed abatement along Baldwin Dam Road (UMF 6); (2) the work was being completed pursuant to a contract between Folsom and CDCR (UMF 7); (3) CDCR officer, Officer Saca, was present and in control of the inmate work crew (UMF 8); (4) Ms. Hills asked Officer Saca if it was okay for her to pass, and Officer Saca responded yes (UMF 10); (5) Ms. Hills walked in the roadway instead of along the side of the road solely because she was apprehensive about the working inmates (UMF13); (6) there was no debris from the CDCR crew’s work that hit Plaintiff or caused her any problem as she walked up Baldwin Dam Road (UMF 12); (7) Carolyn Vodoklys (“Ms. Vodoklys”) observed, stopped at, and passed the CDCR van and Officer Saca (UMF 15); and (8) Ms. Vodoklys admitted there were no visual obstructions which prevented her from seeing Ms. Hills prior to impact (UMF 16.)

Plaintiffs oppose Folsom’s motion, alleging that Folsom contracted to CDCR to perform weed abatement within Folsom. (UMF 6.) Pursuant to the contract, CDCR is an independent contractor of Folsom. Plaintiffs argue that Folsom is liable for the acts of its contractor if the other elements of Government Code section 835 are met. (See Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834.) Plaintiffs claim that Folsom is also liable for the acts of its contractor under section 815.4 to the same extent as private parties, and has a nondelegable duty to maintain property in a reasonably safe condition. (Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726.) While Folsom alleges that Plaintiffs failed to plead any basis for section 815.4 liability against Folsom, the Court need not specifically address this contention given the analysis below related to dangerous condition.

The existence of a dangerous condition is ordinarily a determination of fact; it is only a question of law if reasonable minds can only come to one determination of the issue. (See, e.g., Bonanno v. Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148.) “A

condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial, or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.” (Gov. Code § 830.2.)

Plaintiffs claim that there was a dangerous condition on the property at the time of the incident. As set forth in the Court’s concurrent ruling on CDCR’s motion for summary judgment, which the Court incorporates by reference to the extent relevant to the instant motion, the Court cannot decide as a matter of law that there was no dangerous condition. A trier of fact could infer that the manner in which the weed abatement was conducted created a dangerous condition and it was foreseeable that pedestrians and/or motor vehicle drivers would continue to use the road in a manner that may lead to injury. This is further exacerbated by the presence of Officer Saca, presumably monitoring the roadwork and allowing both pedestrians and vehicles to enter the roadway. Relatedly, the Court found there is no basis for immunity as a matter of law.

To create an additional basis to deny summary adjudication, Plaintiffs further allege that Folsom also created a dangerous condition because, at the time of the inmate work, Folsom knew that the Folsom Garden Club had rented the Rotary Clubhouse at Lew Howard Park between the hours of 9:00 am and 1:00 pm. (AMF 103.) The Garden Club had rented the clubhouse for that day for 359 days before June 2, 2016. (AMF 103.)

Since 2000, Tim O’Shea has been Folsom’s employee responsible for providing work assignments for the CDCR inmate work crew weed abatement program. (AMF 97.) Mr. O’Shea does not send inmate work crews to locations where the work would be “incompatible” with public use of the facilities. (AMF 99.) Mr. O’Shea testified that “one of the things that might make an activity incompatible with weed abatement at the entrance to Lew Howard Park is a significant amount of traffic going up to the Rotary Clubhouse.” (AMF 100.) Mr. O’Shea had a “blanket request” that Folsom notify him of “rentals and special events,” including rentals of the Rotary Clubhouse. (AMF 101.) Despite this request, Mr. O’Shea did not know of the Garden Club’s rental of the Rotary Clubhouse on June 2, 2016. (AMF 112, 113.) These additional material facts also create a basis for denial of summary adjudication on this cause of action.

As an aside, the Court notes that Folsom’s challenge to Plaintiffs’ prayer for relief for attorney’s fees and costs pursuant to Code of Civil Procedure section 1021.5 related to this cause of action is premature. As the Court previously stated in its July 25, 2017 order related to Folsom’s motion to strike portions of the FAC: “[W]hether or not a particular action has resulted in such enforcement of an important public right is not properly determined until the litigation has concluded. . . . ‘There is no requirement that the intent to seek attorney fees under section 1021.5 must be pleaded in the underlying action . . . Such fees are not part of the underlying cause of action, but are incident to the cause and are properly awarded after entry of a . . . judgment . . .’ ( Snatchko v. Westfield, LLC (2010) 187 Cal.App.4th 469, 497, citations omitted, emphasis in original.) While Folsom cites Advanced Micro Devices, Inc. v. National Semiconductor Corp. (N.D. Cal. 1999) F.Supp.2d 802, in that case, that case is not controlling and also plead a separate cause of action for attorney’s fees pursuant to

Code of Civil Procedure section 1021.5. In any event, the Court finds that, pursuant to the facts of this case, adjudication of this issue is not proper at this time.

For the reasons set forth above, Folsom is not entitled to summary adjudication of Plaintiffs’ cause of action for dangerous condition.

Further, Plaintiffs allege that Folsom violated a mandatory duty imposed by the Folsom Municipal Code. Given the determination above, the Court need not reach this issue.

The Court also need not address the opposition filed by Defendants/Cross-Complainants given the Court’s conclusions reached above.

Loss of Consortium

Folsom claims that the loss of consortium claim is derivative and contingent upon a finding of liability against Folsom. Since summary adjudication is denied, summary adjudication of this claim must likewise be denied.

Conclusion

Folsom’s motion for summary judgment/adjudication is DENIED.

Given the Court’s ruling, the Court need not rule on objections to evidence. (Code Civ. Proc. § 437(p).)

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

Item 3 2016-00205417-CU-PA

Maria Luisa Hills vs. State of California

Nature of Proceeding: Motion for Summary Judgment and/or Adjudication(Cross-Complaint)

Filed By: Woodbridge, Catherine

Defendant State of California, by and through California Department of Corrections and Rehabilitation’s (“CDCR”) motion for summary judgment or, in the alternative, summary adjudication against the cross-complaint filed by Carolyn Vodoklys and Steven Vodoklys is ruled upon as follows.

In this action, Plaintiffs Maria Luisa Hills and Barry Hills (collectively, “Plaintiffs”) allege that CDCR, the City of Folsom, and the County of Sacramento created a dangerous condition of public property by closing a sidewalk and directing her to pass into the road where she was struck by a car driven by Defendant Carolyn Vodoklys. Correctional Officer Nader Saca (“Officer Saca”) was supervising the CDCR inmate work crew at the time of the incident.

Defendants Carolyn Vodoklys and Steven Vodoklys filed a cross-complaint against CDCR. CDCR moves for summary adjudication and summary judgment on the cross-complaint, on the following grounds: (1) the first cause of action for indemnity fails as a matter of law because the State of California, by and through the California Department of Corrections and Rehabilitation, cannot be liable for common law equitable indemnity under Government Code section 815, and Cross-Complainants do not have a contractual basis for indemnity; (2) the second cause of action for comparative fault fails as a matter of law because Government Code section 815 prohibits a claim for comparative fault; and (3) the third cause of action for declaratory relief fails because it is not a proper cause of action.

Despite these three issues outlined in the notice of motion, CDCR includes five issues in its separate statement. This is a violation of Rule of Court 3.1350(b), requiring that the issues presented for summary adjudication be stated in the notice of motion and then repeated verbatim in the separate statement. The issues in the separate statement are as follows: (1) first cause of action for indemnity is [sic] fails because CDCR cannot be held liable for common law equitable indemnity; (2) first cause of action for indemnity is [sic] fails because there is no contract for indemnification; (3) second cause of action for comparative fault fails because CDCR cannot be held liable for common law cause of action; (4) second cause of action for comparative fault fails because CDCR is immune from liability; and (5) third cause of action for declaratory relief fails because it seeks determination of identical issues to the first and second causes of action.

The motion is opposed by Defendants/Cross-Complainants Carolyn Vodoklys and Steven Vodoklys.

Defendant CDCR’s request for judicial notice is granted.

Legal Standard

In evaluating a motion for summary judgment or summary adjudication the Court engages in a three-step process.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, quoting C.C.P § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v Advance, Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is only required to show that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, 25 Cal.4th at 853-855.) Further, the initial burden requires a showing that the plaintiff “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (Code Civ. Proc. § 437c(p); see generally Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 326-327.) In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, 25 Cal.4th at 843.)

Summary adjudication requires disposition of an entire cause of action or claim for damages. (Code Civ. Proc. § 437c(f)(1); Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1256.)

Indemnity

Cross-Complainants’ first cause of action alleges: “Cross-defendants, and each of them, are contractually, intentionally, negligently, strictly liable or otherwise legally responsible for the injuries and damages, if any, allegedly sustained by plaintiff and further, said conduct was a legal cause of plaintiff’s alleged injuries and damages, if any.” (Vodoklys Cross-Complaint ¶ 5.) The cross-complaint goes on to state: “Cross-complainants are entitled to express indemnity and to total equitable indemnity for any liability imposed upon cross-complainants herein. Said right to full, equitable implied indemnity is present as a result of the active, affirmative, chief, fundamental, primary and principal conduct on the part of cross-defendants, and each of them, as opposed to the passive and secondary conduct, if any on the part of the cross-complainants herein, which conduct on the part of cross-defendants resulted in the injuries and damages, allegedly sustained by plaintiff. (Id. ¶ 6.)

CDCR alleges that the indemnity cause of action fails because there is no equitable or contractual indemnity. CDCR claims that, through Government Code section 815, “[t] he Legislature unquestionably intended to abolish common law causes of action. Based on Government Code section 815, CDCR cannot be liable for the first cause of action for indemnity and summary adjudication is appropriate.” (Mot. at 6.) CDCR also alleges that Cross-Complainants cannot allege a cause of action for contractual indemnity because there is no contract between Cross-Complainants and CDCR.

The Court will consider the first point outlined in its notice of motion, which relates to the first two “issues” in its separate statement. CDCR includes two UMFs on the first issue. The first is that CDCR is a public entity, an agency of the State of California.

(UMF 1.) The second is that the first cause of action for indemnity fails to allege any statutory basis for liability. (UMF 15.) CDCR includes two UMFs on the second issue. The first is the same as the first issue (UMF 1) and the second is that CDCR does not have a contract with either of the Cross-Complainants for indemnity (UMF 14).

In their opposition, Cross-Complainants contend that CDCR is liable to both Plaintiffs and Cross-Complainants because CDCR is liable for the acts and/or omissions of Officer Saca within the scope of his employment as the officer in charge of the inmate work crew within the work zone at Lew Howard Park on June 2, 2016.

Government Code section 820 states that, subject to exceptions provided by statute, “a public employee employee is liable for injury caused by his act or omission to the same extent as a private person.” (Gov. Code § 820(a).) Further, section 815.2 provides that 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 of omission would have given rise to a cause of action against that employee. “A public entity, as the employer, is generally liable for the torts of an employee committed within the scope of employment if the employee is liable.” (Thomas v. City of Richmond (1995) 9 Cal.4th 1154, 1157, citations omitted.) “Thus, ‘the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person (§ 820(a)) and the public entity is vicariously liable for any injury which its employee causes (§ 815.2(a)) to the same extent as a private employer (§ 815(b)).” ( Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932, quoting Societa per Azioni de Navagazione Italia v. City of Los Angeles (1982) 31 Cal.3d 446, 463, fn. omitted.)

This aside, Gov’t Code §901 provides “For the purpose of computing the time limits prescribed by Sections 911.2, 911.4, 945.6, and 946.6, the date of the accrual of a cause of action to which a claim relates is the date upon which the cause of action would be deemed to have accrued within the meaning of the statute of limitations which would be applicable thereto if there were no requirement that a claim be presented to and be acted upon by the public entity before an action could be commenced thereon. However, the date upon which a cause of action for equitable indemnity or partial equitable indemnity accrues shall be the date upon which a defendant is served with the complaint giving rise to the defendant’s claim for equitable indemnity or partial equitable indemnity against the public entity.” This clearly contemplates that a public entity may be held liable in equitable indemnity if it causes or contributes to a claim. See, e.g. People ex rel. Dept. of Transportation v. Superior Court (1980) 26 Cal.3d 744 [addressing a former version of section 901.] Indeed, it is axiomatic that a tort defendant may file a cross-complaint against a third party when the defendant properly alleges entitlement to indemnity from such a party, should the plaintiff prevail on the original complaint. ( Id., at p. 759; American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 605; Roylance v. Doelger (1962) 57 Cal.2d 255, 259-260.

Accordingly, CDCR’s separate statement is overly simplistic and does not account for vicarious liability on the part of CDCR. On this basis alone, the Court could find that CDCR did not meet its initial burden.

However, Cross-Complainants’ opposition and CDCR’s reply both address CDCR’s broader UMFs filed in support of its motion for summary judgment/summary adjudication of Plaintiff’s operative complaint and not the moving papers’ separate

statement. Since those UMFs relate to the underlying claimed basis for liability for CDCR, the Court will address those below. The Court notes that the UMFs do not match the same numbers as the UMFs in the moving papers. (CDCR filed one reply in response to Cross-Complainants’ opposition to its motion for summary judgment/adjudication related to the operative complaint and Cross-Complainant’s opposition to CDCR’s motion related to the cross-complaint. CDCR also filed objections to Cross-Complainants’ evidence submitted in response to the UMFs filed in opposition, which addressed the separate statement filed by Cross-Complainants in opposition to the motion for summary adjudication/judgment to the operative complaint, not the cross-complaint.)

CDCR points to UMFs in the separate statement in support of its motion related to the operative complaint, including the following: (1) a CDCR inmate work crew was performing weed abatement along Baldwin Dam Road pursuant to a contract with the City of Folsom (UMFs 3, 4); (2) Officer Saca parked a CDCR van and City of Folsom trailer on the right side of the road, placed orange cones around the van and trailer, and marked off the boundaries where the inmates were working (UMFs 8, 9); (3) Ms. Hills was walking on Baldwin Dam Road, came upon the crew, asked Officer Saca if it was okay to pass, and Officer Saca responded yes (UMFs 11-15); (4) Ms. Hills walked past the CDCR van and did not walk to the right-side of the road because she was apprehensive about inmates (UMFs 19, 20); (5) Ms. Hills was in the right-hand lane near the middle of the lane when she was hit by a car driven by Carolyn Vodoklys (“Ms. Vodoklys”) (UMFs 22, 24); (6) there was enough room to the left of Ms. Hills for a car to pass without hitting her (UMF 23); (7) Ms. Vodoklys admits she was distracted by the inmates and did not see Ms. Hills before impact, even though there were no visual obstructions (UMFs 29-31.)

Cross-Complainants dispute many of the UMFs relied upon by CDCR, including whether Officer Saca parked the CDCR van partially blocked the roadway, causing vehicles to drive more towards the middle of the road rather than the right lane (Cross-Complainants’ Response to UMF 8); whether Officer Saca placed orange cones around the van and trailer and marked the boundaries where inmates were working (Cross-Complainants’ Response to UMF 9); the precise nature of conversation between Plaintiff Maria Hills and Officer Saca (Cross-Complainants’ Responses to UMFs 17, 18); whether Ms. Hills did not walk to the right side of the road because of apprehension about inmates or because of the work being performed on the side of the road (Cross-Complainants’ Response to UMF 20); whether debris from the weed abatement caused risk to Ms. Hills or did not hit her or cause her problems because Ms. Hills walked to the center of the road (Cross-Complainants’ Response to UMF 21) and whether and to what extent Ms. Vodoklys’ view may have been obstructed by the CDCR van (Cross-Complainants’ Response to UMF 31).

Further, the cited testimony relied on by CDCR in support of UMF 20 is a portion of the deposition testimony of Ms. Hills, which states:

Q. Was there anything that prevented you from walking to the side of the road in front of the van on the right side? A. The workers were there.

Q. And what prevented you from working [sic] over towards the right side of the road?
A. I was a little apprehensive.

UMF 21 is “Ms. Hills admits there was no debris from the inmates’ weed whackers that hit her or caused her any problem.” However, the fact that Ms. Hills was not hit by debris does not negate that Ms. Hills may have been intentionally walking in the middle of the road precisely so that no debris would hit her. As set forth above, in ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, 25 Cal.4th at 843.)

For these reasons, CDCR is not entitled to summary adjudication of Cross-Complainants’ first cause of action for indemnity.

Comparative Fault

CDCR alleges that Cross-Complainants’ second cause of action fails because Government Code section 815 bars comparative fault in this instance.

CDCR raises the same arguments as above and also alleges: “To the extent that cross -complainants rely on the allegations in plaintiffs’ First Amended Complaint as a basis for liability, their claims still fail. The undisputed facts establish that there is no condition of the property that is dangerous. [UMFS 7-13.] CDCR is not liable for injuries caused by a distracted driver. (Lompoc Unified School Dist. v. Superior Court (1993) 20 Cal.App.4th 1688, 1697-1698; see also Veh. Code § 22350.) Vodoklys admits that she was distracted by the inmates conducting their work and did not see plaintiff. [UMF 9, 13.] Ms. Vodoklys’s inattentive driving is not a reasonably foreseeable risk. [Lompoc, 20 Cal.App.4th at 1694.]” (Oppo. at 7.) Additionally, CDCR alleges it is immune from liability pursuant to Government Code sections 815.2, 830.8, 844.6, and 845.

CDCR includes two UMFs in support of the third issue that the cause of action fails because CDCR cannot be held liable for a common law cause of action, that it is a public entity, an agency of the State of California (UMF 1) and that Cross-Complainants’ second cause of action for indemnity [sic] fails to allege any statutory basis for liability. CDCR also includes 13 UMFs for the fourth issue that the comparative fault fails because CDCR is immune from liability.

However, as with the first cause of action, the opposition and reply both address a broader number of UMFs.

For the reasons outlined in the Court’s concurrent ruling on CDCR’s opposition to Plaintiffs’ first amended complaint, as well as the reasons outlined above, these arguments are not persuasive.

Summary adjudication is denied as to the second cause of action for comparative fault.

Declaratory Relief

CDCR argues that Cross-Complainants’ declaratory relief cause of action is improper because it is duplicative and unnecessary.

Cross-Complainants do not address this cause of action in their opposition. The Court takes the lack of opposition as a concession on the merits.

Summary adjudication is granted as to the third cause of action for declaratory relief.

Conclusion

Summary adjudication is denied as to the first cause of action for indemnity and the second cause of action for comparative fault. Summary adjudication is granted as to the third cause of action for declaratory relief.

CDCR’s objection no. 3 to evidence submitted to dispute UMF 8; objection no. 4 to evidence to dispute UMF 9; objection no. 6 to evidence to dispute UMF 17; objection no. 7 to evidence to dispute UMF 18; objection no. 8 to evidence submitted to dispute UMF 20; objection no. 9 to evidence submitted to dispute UMF 21; and objection no. 13 to evidence submitted to dispute UMF 31 are overruled. Given the Court’s ruling, it need not rule on any other objections. (See Code Civ. Proc. § 437c(q).)

CDCR is directed to prepare a formal order complying with C.C.P. §437c(g) and C.R.C. Rule 3.1312.

Link to this page

Copy the code below to your web site.

Legal News

Maria Luisa Hills v. State of California

Leave a Reply