This case was last updated from Los Angeles County Superior Courts on 06/01/2019 at 03:58:44 (UTC).

ANDREA JULISSA AVELLANEDA LOPEZ ET AL VS POMONA UNIFIED

Case Summary

On 12/05/2017 ANDREA JULISSA AVELLANEDA LOPEZ filed a Personal Injury - Other Personal Injury lawsuit against POMONA UNIFIED. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is LAURA A. SEIGLE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5865

  • Filing Date:

    12/05/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

LAURA A. SEIGLE

 

Party Details

Defendants and Respondents

POMONA SCHOOOL DISTRICT

DOES 1 TO 50

Minor

LOPEZ ANDREA JULISSA AVELLANEDA

Guardian Ad Litem

LOPEZ LUIS FRANCISCO

Attorney/Law Firm Details

Defendant Attorney

HARBER STEPHEN MARK

Minor Attorney

PAYNE MICHAEL DAVID ESQ.

 

Court Documents

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL EX PARTE

2/28/2018: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL EX PARTE

NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

2/28/2018: NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL EX PARTE

4/30/2018: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL EX PARTE

NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

4/30/2018: NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

5/25/2018: APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

SUMMONS

6/18/2018: SUMMONS

Proof of Personal Service

11/28/2018: Proof of Personal Service

Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

5/2/2019: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)

NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

1/11/2018: NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

APPUCATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

1/11/2018: APPUCATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM?CIVIL

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

12/5/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

 

Docket Entries

  • 05/21/2019
  • at 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 05/02/2019
  • [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by POMONA SCHOOOL DISTRICT (Defendant)

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  • 01/02/2019
  • Answer; Filed by POMONA SCHOOOL DISTRICT (Defendant)

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  • 11/28/2018
  • Proof of Service of Summons; Filed by ANDREA JULISSA AVELLANEDA LOPEZ (Legacy Party)

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  • 06/18/2018
  • SUMMONS

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  • 06/18/2018
  • Summons Issued; Filed by Clerk

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  • 06/18/2018
  • Summons; Filed by Clerk

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  • 05/25/2018
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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  • 05/25/2018
  • Application ; Filed by Plaintiff/Petitioner

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  • 04/30/2018
  • Application ; Filed by Plaintiff/Petitioner

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  • 04/30/2018
  • NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 04/30/2018
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL EX PARTE

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  • 02/28/2018
  • APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL EX PARTE

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  • 02/28/2018
  • Application ; Filed by Plaintiff/Petitioner

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  • 02/28/2018
  • NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 01/11/2018
  • APPUCATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM CIVIL

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  • 01/11/2018
  • NOTICE OF REJECTION - APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM

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  • 01/11/2018
  • Application ; Filed by Plaintiff/Petitioner

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  • 12/05/2017
  • Complaint; Filed by null

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  • 12/05/2017
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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Tentative Rulings

Case Number: BC685865    Hearing Date: February 25, 2020    Dept: 27

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On December 7, 2017, plaintiff Andrea Julissa Avellaneda Lopez (“Plaintiff”) filed this action against Pomona Unified School District (“Defendant”) for general negligence and premises liability arising from second-degree burns sustained when she fell on a metal platform outside a classroom. In both causes of action, Plaintiff alleges Defendant and its employees owed a duty to safely operate, monitor, maintain, and supervise its surroundings, including but not limited to the supervision of its students, and that Defendant breached that duty by allowing Plaintiff to be injured by the hot metal.

Defendant moves for summary judgment on the grounds that: (1) it is immune under the design immunity defense; (2) there is no evidence of a dangerous condition; and (3) Plaintiff cannot establish negligent supervision caused the injury.

II. FACTUAL BACKGROUND

Plaintiff alleges that when she was about three years old, she fell on a hot metal platform outside a school classroom on a hot summer day and sustained burns to her right leg. (UMF Nos. 1-2.) Plaintiff was three-years old and was attending a Pre-K “Head Start” summer school program when special education aide Iris Alcala (“Alcala”) noticed Plaintiff was not participating in class, had isolated herself underneath a table, and appeared to be on the verge of a temper tantrum. (UMF Nos. 18, 19.) Alcala had seen this before and recognized the behavior, so she took Plaintiff for a walk to calm down. (UMF No. 20.) Walking back to the classroom, Plaintiff and Alcala walked up the metal surface, and Plaintiff stood near a baby gate installed at the classroom doorway. (UMF Nos. 21, 22.) Plaintiff appeared happy and waved to the teacher on the other side of the baby gate. (Id.) As Alcala approached Plaintiff from behind and began to open the baby gate, Plaintiff began to throw a temper tantrum. (UMF No. 23.) She started crying and dropped to the ground on her knees, causing her right leg to make contact with the metal platform outside of the classroom. (Id.) Within less than a few seconds, Alcala picked Plaintiff up and carried her into the classroom. (UMF No. 24.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. EVIDENTIARY OBJECTIONS

Defendant’s Objection Nos. 1 and 2: SUSTAINED.

V. DISCUSSION

Defendant first argues summary judgment should be granted because it is immune purusant to the design immunity defense. Government Code section 830.6 provides that a public entity is not liable for injury caused by the plan or design of a construction or improvement to public property where the plan or design was approved in advance of the construction or improvement by the legislative body or employee exercising discretionary authority to give such approval. A public entity claiming design immunity must establish: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction, or that the plan or design was prepared in conformity with standards previously so approved; and (3) substantial evidence supporting the reasonableness of the plan or design. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 68-69.)

The first question is whether there is undisputed evidence that the accident was caused by a design defect and not some other cause. (Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931, 939-940.) Defendant argues this element is satisfied because Plaintiff alleges in her complaint that the hot metal platform caused the injury. But, the complaint also alleges that Defendant “failed to safely operate, monitor, maintain, and supervise its surroundings, including but not limited to the supervision of students.” The design immunity defense “does not immunize against liability caused by negligence independent of design, even though independent negligence is only a concurring proximate cause of the accident.” (Mozzetti v. City of Brisbane (1977) 67 Cal.App.3d 565, 575.) Because Plaintiff alleges negligent supervision by Alcala as a cause of her injuries, the design defect immunity does not apply here.

Next, Defendant argues the metal platform was not a dangerous condition because Plaintiff did not use due care on the platform, and it was not reasonably foreseeable Plaintiff would have a temper tantrum and drop down on the platform. To hold a public entity liable for injury caused by a dangerous condition, a plaintiff must prove (1) that the property was a dangerous condition at the time of the injury, (2) that the injury was proximately caused by the dangerous condition, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) that either 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 the public entity had actual or constructive notice of the dangerous condition and sufficient time prior to the injury to have taken measures to protect against the dangerous condition. (Gov. Code, § 835.)

“Children are not held to the same standards of behavior as adults.” (CACI No. 402.) Defendant’s argument that Plaintiff was familiar with the metal platform and should have been able to walk on it without having a temper tantrum and falling down obviously would apply to an adult, but not necessarily to a three year old. The Court cannot determine that a jury could not reasonably find that Plaintiff used due care expected of a three-year old on the metal platform.

Defendant also argues that it was not reasonably foreseeable that Plaintiff would drop onto the platform because it was readily apparent that the metal surface would become hot in the sun. Defendant contends a person walking on the platform would appreciate that the metal was hot and know not to expose bare skin to the surface. Again, that common sense, as Defendant puts it, may be obvious to an adult, but not to a three year old. Defendant relies on Biscotti v. Yuba City Unified School District (2007) 158 Cal.App.4th 554 to argue that the dangerous condition was obvious as a matter of law even to a child. In Biscotti, the court held that a nine-year old’s decision to climb a fence was not a foreseeable because fences are not meant to be climbed but to keep people out, and “the risk of falling and being seriously injured would be obvious, even to a nine-year old boy.” (Id. at p. 557.) The Court cannot conclude as a matter of a law that the risk of touching metal hot from the sun is obvious to a three-year old child. The metal platform leading into the classroom was meant to be walked on and used by preschool children to access the classroom, which is what Plaintiff was doing. A reasonable jury could find it is foreseeable that a three-year old child could fall on the metal platform and not know it would be dangerously hot.

Finally, Defendant argues that Plaintiff cannot prove it is liabile under Government Code section 815.2 for its employee’s failure to suprervise Plaintiff. School personnel owe students under their supervision a protective duty of ordinary care, for breach of which the school district may be held vicariously liable. (C.A. v. William S. Hart Union high School Dist. (2012) 53 Cal.4th 864, 865-866.) Defendant argues its employee was properly supervising Plaintiff, the few seconds Plaintiff was on the ground was too short a time for Defendant to prevent the injury, and there is no evidence that increased supervision would have prevented this incident.

‘It was not necessary to prove that the very injury which occurred must have been foreseeable by the school authorities in order to establish that their failure to provide the necessary safeguards constituted negligence. Their negligence is established if a reasonably prudent person would foresee that injury of the same general type would be likely to happen in the absence of such safeguards. [Citation.]’ [Citation.] However, there must be a proximate causal connection between the inadequacy of the supervision and the accident. [Citation.]” (Woodsmall v. Mt. Diablo Unified School Dist. (1961) 188 Cal.App.2d 262, 264.) “[I]t is not necessary that the exact injuries which occurred have been foreseeable; it is enough that ‘a reasonably prudent person would foresee that injuries of the same general type would be likely to occur in the absence of adequate safeguards. (Citations.)’ [Citations.]” “Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 751.)

Here, the issue is not that Alcala should have picked up Plaintiff more quickly. Nor is it a situation where another cause, such as another student, intervened to cause the injury, like in Woodsmall. Rather, Plaintiff argues that with proper supervision, such as Alcala holding Plaintiff’s hand, Plaintiff would not have fallen in the first place. A jury could find here that a reasonably prudent supervisor of Plaintiff would foresee that she could have a temper tantrum and fall to the ground. Just a short time earlier, she had been under a table about to have a temper tantrum, which Defendant states Alcala had seen before and recognized. Also, as Defendant argues, it was readily apparent to an adult such as Alcala that the metal surface of the platform would become hot in the sun and could injure bare skin. In sum, a jury could conclude that proper supervision required taking additional steps to prevent Plaintiff from falling onto the hot metal platform, such as by holding her hand.

Accordingly, the Court cannot conclude that as a matter of law, Defendant adequately supervised Plaintiff.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative.