This case was last updated from Los Angeles County Superior Courts on 11/27/2019 at 15:45:14 (UTC).

MAYRA WILCHIS VS THE CITY OF MANHATTAN BEACH ET AL

Case Summary

On 05/17/2018 a Personal Injury - Uninsured Motor Vehicle case was filed by MAYRA WILCHIS against THE CITY OF MANHATTAN BEACH in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****6443

  • Filing Date:

    05/17/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Uninsured Motor Vehicle

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

WILCHIS MAYRA

Defendants, Respondents and Cross Plaintiffs

DOES 1-25

MANHATTAN BEACH THE CITY OF

LANDSCAPE STRUCTURES INC.

MIRACLE RECREATION EQUIPMENT COMPANY

MANHATTAN BEACH UNIFIED SCHOOL DISTRICT

THE CITY OF MANHATTAN BEACH

Defendants, Respondents and Cross Defendants

MANHATTAN BEACH UNIFIED SCHOOL DISTRICT

THE CITY OF MANHATTAN BEACH

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

GLOTZER JOSHUA W. ESQ.

Defendant, Respondent and Cross Plaintiff Attorneys

ALLEN GLAESSNER HAZELWOOD & WERTH LLP

NOLEN RUDY

MCCUNE DANA JOHN ESQ

 

Court Documents

Brief - BRIEF EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

11/1/2019: Brief - BRIEF EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Motion for Summary Judgment

11/1/2019: Motion for Summary Judgment

Request for Judicial Notice

11/1/2019: Request for Judicial Notice

Request for Dismissal

11/7/2019: Request for Dismissal

Ex Parte Application - EX PARTE APPLICATION OF DEFENDANTS CITY OF MANHATTAN BEACH AND MANHATTAN BEACH UNIFIED SCHOOL DISTRICT TO CONTINUE THE TRIAL DATE TO ALLOW FOR SUMMARY JUDGMENT TO BE HEARD; DEC

8/21/2019: Ex Parte Application - EX PARTE APPLICATION OF DEFENDANTS CITY OF MANHATTAN BEACH AND MANHATTAN BEACH UNIFIED SCHOOL DISTRICT TO CONTINUE THE TRIAL DATE TO ALLOW FOR SUMMARY JUDGMENT TO BE HEARD; DEC

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION OF DEFENDANTS CITY OF MANHATT...)

8/21/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION OF DEFENDANTS CITY OF MANHATT...)

Request for Dismissal

2/25/2019: Request for Dismissal

Notice of Entry of Dismissal and Proof of Service

3/26/2019: Notice of Entry of Dismissal and Proof of Service

DEFENDANT MIRACLE RECREATION EQUIPMENT COMPANY'S CROSS-COMPLAINT

6/6/2018: DEFENDANT MIRACLE RECREATION EQUIPMENT COMPANY'S CROSS-COMPLAINT

CIVIL DEPOSIT -

6/20/2018: CIVIL DEPOSIT -

LANDSCAPE STRUCTURES INC'S ANSWER TO PLAINTIFF'S COMPLAINT

6/21/2018: LANDSCAPE STRUCTURES INC'S ANSWER TO PLAINTIFF'S COMPLAINT

ANSWER OF DEFENDANTS CITY OF MANHATTAN BEACH AND MANHATTAN BEACH AND MANHATTAN SCHOOL DISTRICT TO PLAINTIFF'S COMPLAINT FOR DAMAGES

7/10/2018: ANSWER OF DEFENDANTS CITY OF MANHATTAN BEACH AND MANHATTAN BEACH AND MANHATTAN SCHOOL DISTRICT TO PLAINTIFF'S COMPLAINT FOR DAMAGES

DEFENDANT MIRACLE RECREATION EQUIPMENT COMPANY'S CROSS-COMPLAWT

6/12/2018: DEFENDANT MIRACLE RECREATION EQUIPMENT COMPANY'S CROSS-COMPLAWT

PROOF OF SERVICE SUMMONS -

5/22/2018: PROOF OF SERVICE SUMMONS -

PROOF OF SERVICE SUMMONS -

5/22/2018: PROOF OF SERVICE SUMMONS -

PROOF OF SERVICE SUMMONS -

5/22/2018: PROOF OF SERVICE SUMMONS -

SUMMONS -

5/17/2018: SUMMONS -

COMPLAINT FOR DAMAGES: 1. DANGEROUS CONDITION OF PUBLIC PROPERTY [GOVERNMENT CODE SECTIONS 8815.2, 815.4, 815.6, 818.6, 820, 820.8, 8821.4, 830, 830.8, 835, 835.2, 840.2 AND 840.4] ;ETC

5/17/2018: COMPLAINT FOR DAMAGES: 1. DANGEROUS CONDITION OF PUBLIC PROPERTY [GOVERNMENT CODE SECTIONS 8815.2, 815.4, 815.6, 818.6, 820, 820.8, 8821.4, 830, 830.8, 835, 835.2, 840.2 AND 840.4] ;ETC

11 More Documents Available

 

Docket Entries

  • 05/17/2021
  • Hearing05/17/2021 at 08:30 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; : OSC RE Dismissal

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  • 02/21/2020
  • Hearing02/21/2020 at 08:30 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial

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  • 02/05/2020
  • Hearing02/05/2020 at 10:00 AM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference

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  • 01/17/2020
  • Hearing01/17/2020 at 13:30 PM in Department 5 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 11/18/2019
  • Docketat 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 11/07/2019
  • DocketRequest for Dismissal; Filed by Miracle Recreation Equipment Company (Defendant)

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  • 11/01/2019
  • DocketBrief (Evidence in Support of Motion for Summary Judgment); Filed by The City of Manhattan Beach (Defendant)

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  • 11/01/2019
  • DocketRequest for Judicial Notice; Filed by The City of Manhattan Beach (Defendant)

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  • 11/01/2019
  • DocketSeparate Statement; Filed by The City of Manhattan Beach (Defendant)

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  • 11/01/2019
  • DocketMotion for Summary Judgment; Filed by The City of Manhattan Beach (Defendant)

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22 More Docket Entries
  • 05/22/2018
  • DocketProof-Service/Summons; Filed by Mayra Wilchis (Plaintiff)

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  • 05/22/2018
  • DocketProof-Service/Summons; Filed by Mayra Wilchis (Plaintiff)

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  • 05/22/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/22/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/22/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/22/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 05/22/2018
  • DocketProof-Service/Summons; Filed by Mayra Wilchis (Plaintiff)

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  • 05/17/2018
  • DocketComplaint; Filed by Mayra Wilchis (Plaintiff)

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  • 05/17/2018
  • DocketCOMPLAINT FOR DAMAGES: 1. DANGEROUS CONDITION OF PUBLIC PROPERTY [GOVERNMENT CODE SECTIONS 8815.2, 815.4, 815.6, 818.6, 820, 820.8, 8821.4, 830, 830.8, 835, 835.2, 840.2 AND 840.4] ;ETC

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  • 05/17/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC706443    Hearing Date: January 22, 2020    Dept: 32

 

Superior Court of California

County of Los Angeles

Department 5

MAYRA WILCHIS,

Plaintiff,

v.

city of manhattan beach, et al.,

Defendants.

Case No.: BC706443

Hearing Date: January 17, 2020

[TENTATIVE] order RE:

DEFENDANTS’ motion for summary judgment

Background

On October 9, 2017, at approximately 5:45 p.m., Plaintiff Mayra Wilchis (“Plaintiff”) tripped and fell to the ground at Polliwog Park, within the City of Manhattan Beach. (Plaintiff’s Response to Defendants’ Separate Statement of Undisputed Material Facts, ¶ 1.) Plaintiff tripped and fell because of an “eroded rubberized or composite ground surface covering the north end of the monkey bar equipment in the park’s play or playground area. (Id., ¶ 2.) The playground is owned by Defendant Manhattan Beach Unified School District (the “School District”) and leased to Defendant City of Manhattan Beach (the “City”) (collectively, “Defendants”). Plaintiff asserts causes of action for dangerous condition of public property and common law negligence. Defendants move for summary judgment or, in the alternative, summary adjudication. The motion is denied.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law . . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)

“[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) In ruling on the motion, “the court may not weigh the plaintiff's evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.” (Id. at p. 856.) However, the Court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Ibid.)

EVIDENTIARY OBJECTIONS

The Court overrules Plaintiff’s objections to the declaration of Bobby Dodson. There is sufficient foundation, and the issues raised by Plaintiff go to weight, not admissibility. With respect to Defendants’ objections, the Court conditionally overrules Defendants’ objections to Mark Burns’ account that it rained in January 2017. Experts are allowed to rely on non-case specific hearsay, and it is likely that Mr. Burns knows about the rains because his office is in Marina Del Rey, which is only about ten miles north of Manhattan Beach. Nevertheless, Defendants raise a valid point that this part of the declaration lacks attribution. Therefore, the Court overrules the objection on the condition that Plaintiff files a supplemental declaration from Mr. Burns making clear how he knows that it rained in Manhattan Beach in January 2017. If Plaintiff fails to do so, or if the declaration is not sufficient to support that statement, Defendants may file a motion for reconsideration of this order. The Court need not rule on Defendants’ remaining objections. (Code Civ. Proc. § 437c(q).)

REQUEST FOR JUDICIAL NOTICE

Defendants request that the Court take judicial notice of Plaintiff’s complaint, to which there is no objection. The Court may take judicial notice of filings, per Evidence Code section 452(d), but it may only take judicial notice of their existence and not the truth of their contents. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) The Court does so under these parameters.

DISCUSSION

A. Dangerous Condition of Public Property

Government Code section 815 provides that “[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” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) In this case, Plaintiff alleges that Defendants are liable due to a dangerous condition, per Government Code section 835. Plaintiff must prove: (1) The property was a dangerous condition at the time of the injury, (2) The injury was proximately caused by the dangerous condition, (3) The dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and (4) 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.) Defendant argues that: (1) The allegedly dangerous condition was a trivial defect; and (2) Defendants had no actual or constructive notice of the allegedly dangerous condition.

1. Trivial Defect

A condition is not “dangerous” if 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 used with due care in a manner in which it was reasonably foreseeable that it would be used. (Gov. Code, § 830.2.) “Whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact. [Citation] The issue of a dangerous condition becomes a question of law only where reasonable minds can come to only one conclusion. . . . Whether the condition of property posed a substantial risk of injury to foreseeable users exercising due care is an objective standard and is measured by the risk posed to an ordinary foreseeable user.” (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 991-992.)

Defendants proffer Plaintiff’s deposition transcript and exhibits. Plaintiff testified that Exhibit #2 through Exhibit #4 represent the condition of the rubber ground cover on the date of her injury. (Declaration of Maurice S. Kane, Jr., Exh. D, at pp. 80-81.) The photographs only a slight divot in the rubber ground cover.

Defendants also rely on the declaration of Bobby Dodson, the Public Works Maintenance Supervisor for the City of Manhattan Beach. Dodson states that the Risk Manager of the City of Manhattan Beach informed him of Plaintiff’s injury, after which he visited Polliwog Park. (Declaration of Bobby Dodson, ¶¶ 8.) Dodson took measurements of the rubberized surfaces at the park and found that no gap was deeper than one-quarter inch. (Id., ¶¶ 8-10.) Plaintiff objects to this declaration, arguing that it lacks foundation because it does not include the date on which he conducted the measurements or what part of the surfaces he measured. The absence of the date is not dispositive because he states that he conducted the measurements after the accident. As to the second issue, Dodson states that he measured “the rubberized surfaces of Polliwog Park,” meaning all of the rubberized areas. Dodson also makes clear that he measured the area in which Plaintiff fell, because he determined “that no repairs were needed at the site identified as the area where [Plaintiff] tripped and fell to the ground” because “[i]f the depth of the rubberized surface is a quarter of an inch or less then [the City] would not make a repair on it.” (Id., ¶¶ 11-12.) Therefore, there is sufficient foundation for Dodson’s declaration, and the issues identified by Plaintiff go to weight, not admissibility.

This evidence is sufficient to satisfy Defendants’ burden. Plaintiff relies on a declaration by Mark Burns, a safety expert. Burns measured the uplift where Plaintiff fell as 0.6625 inches in height. “A municipality cannot be expected to maintain the surface of its sidewalks free from all inequities and from every possible obstruction to travel.” (Fielder v. City of Glendale (1977) 71 Cal.App.3d 719, 723 (citation omitted).) The Second District has held that uplifts less than ½ inch in height are trivial as a matter of law. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 929.) Courts have also found that uplifts greater than ½ inch in height may be trivial as a matter of law absent any aggravating conditions. (Whiting v. City of National City (1937) 9 Cal.2d 163; Nicholson v. City of Los Angeles (1936) 5 Cal.2d 361; Balmer v. City of Beverly Hills (1937) 22 Cal.App.2d 529; Meyer v. City of San Rafael (1937) 22 Cal.App.2d 46, 50). “Sidewalk elevations ranging from three-quarters of an inch to one and one-half inches have generally been held trivial as a matter of law. (Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1097, citations omitted.)

Nevertheless, the Court cannot conclude that the uplift is a trivial defect as a matter of law. Had this been a sidewalk or another concrete surface, Defendant likely would prevail on this issue. However, Plaintiff’s expert, Mark Burns, observed that the rubberized surface is not a hard, firm surface like concrete, but rather is loose. (Declaration of Mark Burns, ¶ 17.) This is confirmed by Defendant’s photographs. Burns notes that “a pedestrian’s foot could easily get stuck and lift up the loose portion of the [rubberized surface] thereby tripping and falling.” (Ibid.) Defendants make much of their policy not to repair the rubberized surfaces unless the uplifts are more than one-quarter of an inch. While that may be sufficient for a sidewalk, Defendants ignore the danger posed by the rubberized surfaces becoming loose and creating a trip hazard. Plaintiff’s evidence creates a triable issue, such that the Court cannot conclude that the defect is trivial as a matter of law.

2. Notice

In the alternative, Defendants argue that they had no actual or constructive notice of any dangerous condition, viz., an uplift in the rubberized surface at the park. Defendants argue that there is no evidence of any similar complaints. In addition, Bobby Dodson’s declaration states that he is the Public Works Maintenance Supervisor for the City of Manhattan Beach, and that he is familiar with the inspection and maintenance of the City’s parks. (Declaration of Bobby Dodson, ¶ 2.) He states that he has access to all inspection and inventory data involving the parks, and that no reports of trip and fall accidents involving the rubberized surfaces at Polliwog Park had been made in the prior ten year period (except for Plaintiff’s accident). (Id., ¶¶ 2, 15.)

Defendants’ evidence satisfies their burden, shifting the burden to Plaintiff to proffer sufficient evidence that Defendants were on constructive notice of problems. Michael Hudak testified that the rubberized surface “breaks down after a while,” such that repair is necessary. (Plaintiff’s Appendix of Exhibits, Exh. B (Deposition of Michael Hudak, at p. 44.) Bobby Dodson testified that the rubberized surfaces become “saturated with water” after rain, even if there is no flooding. (Plaintiff’s Appendix of Exhibits, Exh. A (Deposition of Bobby Dodson, at pp. 11-12.) Dodson also testified that water can get underneath the rubberized surfaces, and the Court overrules Defendants’ objection to this testimony. (Id., at p.12.) Dodson testified that after it rains, the City “pressure wash[es] all the equipment, but he has “no idea” whether the rubberized material is designed to be submerged in water. (Id., at p.27.) Plaintiff’s expert, Mark J. Burns, states that water contributes to the deterioration of the rubberized surfaces. (Declaration of Mark J. Burns, ¶ 23.) Burns also notes that there was rain in January 2017. (Ibid.)

There is no evidence that Defendants inspected the rubberized surfaces between August 2016 and Plaintiff’s accident. Plaintiff proffers the following evidence of repairs:

- A work order submitted on January 18, 2013, because the surface material near the slides in the upper playground were becoming loose and peeling.

- A work order submitted on March 28, 2013, regarding the “strip rubber at the playground/pour rubber” at the park.

- A work order submitted on May 23, 2013, to order more rubber and glue for the matting at the park.

- A work order submitted on June 3, 2013, to measure torn rubber at the playground and inspect the park.

- A work order submitted on December 23, 2014, to “pour rubber at Polliwog Park/trip hazards and walking pads.”

- A work order submitted on August 15, 2016, regarding “Polliwog tot lot rubber mat damaged trip hazard.”

(Plaintiff’s Response to Defendants’ Separate Statement of Undisputed Material Facts, ¶ 9.) However, there is no evidence of any inspection between August 2016 and October 2017.

Standing alone, this evidence gives rise to a triable issue. In this case, however, there is evidence that Defendants made a conscious decision not to perform any repairs to the rubberized surface on which Plaintiff tripped.

Q: Do you know if there’s any other work orders pertaining to Polliwog Park, the rubberized surfaces, after August 10, 2016?

A: I’m not sure.

Q: Okay. Do you have any -- do you know of any reason why these repair orders stop or these work orders stop in August 2016?

A: For the rubberized?

Q: Yeah.

A: Because we didn’t perform any more work on the rubberized at that point.

(Plaintiff’s Appendix of Exhibits, Exh. A (Deposition of Bobby Dodson, at pp. 20-21.) This testimony was confirmed by Michael Hudak, who testified that no repairs were made after August 2016. (Plaintiff’s Appendix of Exhibits, Exh. B (Deposition of Michael Hudak, at pp. 43-44.) Hudak’s testimony suggests that Defendants stopped repairing the rubberized surface because they decided to replace it:

Q: Do you know if this condition that’s depicted in Exhibit H has been repaired in any way?

A: I do not know. I can speculate that it has not and it will not be because we are going to be replacing it shortly, doing a whole new replacement?

Q: Oh, okay. Of this area or the entire park?

A: The pour in place.

(Id., at p. 44.)

Plaintiff’s evidence gives rise to a triable issue for numerous independent reasons. As an initial matter, an argument can be made that Defendants created the dangerous condition themselves by power-washing the playground equipment, which gets the rubberized surfaces wet and contributes to their deterioration. Putting aside that argument, however, there is evidence that Defendants had notice that the rubberized surface on the playground deteriorates, following work orders at regular intervals, but then did not inspect the rubberized surfaces between August 2016 and October 2017. Moreover, there is evidence that Defendants decided to stop making repairs to the rubberized surface in favor of replacing the entire covering. Yet, Defendants failed to do so between the time they stopped making repairs (August 2016) and the date of Hudak’s deposition (June 2019). Based upon this evidence, a reasonable trier of fact could conclude that Defendants had constructive notice of the problems and turned a blind eye. Therefore, Defendants’ motion for summary adjudication is denied with respect to the claim for dangerous condition of public property.

B. Common Law Negligence

“[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.) Plaintiff argues that the negligence claim is, in fact, a claim under Government Code section 815.2 based upon allegations that Defendants are liable for the negligence of their employees. Plaintiff is incorrect. Nowhere in the cause of action does Plaintiff allege that Defendants are liable because of the negligence of their employees. Plaintiff alleges that “Defendants and each of them were unreasonably negligent . . . .” (Complaint, ¶ 28.) Plaintiff frames the entire claim in terms of Defendants’ negligence and does not allege that they are liable because of their employees’ negligence. (Complaint ¶¶ 29-33.) Because Plaintiff cannot maintain common law claims against municipal entities, the Court grants summary adjudication on the cause of action for negligence.

CONCLUSION AND ORDER

Defendants’ motion for summary adjudication is granted in part and denied in part. The Court denies summary adjudication with respect to the claim for dangerous condition of public property. The Court grants summary adjudication with respect to the claim for negligence. The Court orders Plaintiff to file a supplemental declaration from Mark Burns stating how he knows it rained in Manhattan Beach in January 2017. If Plaintiff fails to do so, or the declaration is not sufficient to support that statement, Defendants may file a motion for reconsideration of this order.

DATED: January 17, 2020 ___________________________

Hon. Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC706443    Hearing Date: January 17, 2020    Dept: 32

Mayra Wilchis v. City of Manhattan Beach

Case No. BC 706443

The hearing on this motion is continued to January 22, 2020, at 1:30 p.m.