Case Name: Garcia, et al. v. Santa Clara Valley Transportation Authority, et al.

Case No.: 16CV297131

Defendant the City of San Jose (the “City” or “Defendant”) moves for summary judgment, or in the alternative, summary adjudication in its 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
II.

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 15, 2019, the City filed the instant motion for summary judgment/summary adjudication. Plaintiffs oppose the motion.

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

A. The City’s Requests for Judicial Notice
B.

In support of its opening supporting brief and reply, the City makes separate requests for judicial notice. First, the City requests that the Court take judicial notice of: (1) the Complaint (Exhibit A); (2) the City’s Answer to the Complaint (Exhibit B); (3) San Jose City Charter sections 100 and 300 (Exhibit C); and (4) the government claim filed by Aldo Alvarez on December 15, 2015 (Exhibit D). These items are proper subjects of judicial notice as either court records, the statutory law of California or official governmental acts. (Evid. Code, § 452, subds. (b), (c) and (d).) Consequently, the City’s initial request for judicial notice is GRANTED.

In support of its reply, the City requests that the Court take judicial notice of the Manual on Uniform Traffic Control Devices, Section 1A.13, a document provided by the California Department of Transportation. The Court will take judicial notice of this item as a fact or proposition that is not reasonably subject to dispute and is capable of immediate and accurate determination by resort to sources of indisputable accuracy. (Evid. Code, § 452, subd. (h).) Therefore, the City’s supplemental request for judicial notice is also GRANTED.

C. Legal Standard
D.

“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.)

E. Analysis
F.

With the instant motion, the City maintains that it is entitled to summary judgment, or in the alternative, summary 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 barred 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; and (3) the City cannot be held liable for negligent entrustment because it did not own or control the subject VTA train, nor was operator Welch a City employee. These arguments will be addressed in turn.

1. Satisfaction of Claims Presentation Requirement
2.

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.) It is undisputed that the City is a public entity. (The City’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment/Adjudication (“UMF”) No. 8.)

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 the materials submitted by the City in support of its motion, only the Decedent and Garcia presented a claim; Ramirez and Alvarez did not. (UMF Nos. 1-5.)

Citing to Peterson v. City of Vallejo (1968) 259 Cal.App.2d 757, the City 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 City 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 City 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 City’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 City who was asserting the claim. There was nothing in the claim which provided notice to the City 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 City 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 City’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 compliance1 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 City 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, the City’s request for summary judgment as to Alvarez and Ramirez is GRANTED.

3. Common Law Negligence
4.

The City next argues 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”].) The City continues that even assuming Decedent’s heirs complied with the Government Claims Act, they cannot succeed on the first two claims as pleaded for the same reason.

California statute, particularly Government Code section 815, subdivision (a), prohibits a public entity’s direct liability in tort except as specifically provided by statute.2 (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.) As no statutory basis for negligence has been stated by Plaintiffs and a common law negligence claim cannot be maintained against the City, it follows that the City is entitled summary adjudication of the first and second causes of action.

Plaintiffs impliedly concede the merits of the City’s argument in failing to address it in their opposition, instead discussing whether the City was negligent and whether such negligence contributed to their injuries. They do not discuss a statutory basis for their claims, nor address their inability to advance a common law negligence claim against the City. Consequently, the City’s request for summary adjudication of the first and second causes of action is GRANTED.

5. Negligent Entrustment
6.

As set forth above, the City maintains that it is entitled to summary adjudication of Plaintiffs’ remaining claim for negligent entrustment because it did not own or control the subject VTA train involved in the incident, nor was train operator Welch its employee.

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 City submits evidence which demonstrates that the VTA, a separate public entity, owns, operates and controls the train involved in the incident that is the subject of this Complaint, and that Welch is and was employed by the VTA and not the City. (UMF Nos. 19-20.) This evidence is sufficient to meet the City’s initial burden by negating several of the essential elements of Plaintiffs’ claim for negligent entrustment, specifically ownership of the train and the hiring/training of the operator of that train. Plaintiffs essentially concede that this claim against the City lacks merit in completely failing to address the claim and the City’s related evidence in their opposition. Accordingly, as the City has met its initial burden and Plaintiffs have not raised a triable issue in opposition, the City’s request for summary adjudication of the third cause of action for negligent entrustment is GRANTED. It follows that the City’s request for summary judgment is GRANTED in its entirety.