Preview
ELECTRONICALLY FILED
Superior Court of California,
County of Placer
11/25/2020
By: Laurel Sanders, Deputy Clerk
DavidV. Roth (State Bar No.: 194648)
Evgenia Jansen (State Bar No.: 325039)
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MANNING & KASS
ELLROD, RAMIREZ, TRESTER LLP
One Califomia Street, Floor gh
San Francisco, CA 94111
Telephone: (415) 217-6990
Facsimile: (415) 217-6999
Attol for Defendant/Cross-Complainant, FILING FEE EXEMPT PURSUANTTO
PLAC! COUNTY IN-HOME GOVERNMENT CODE § 6108
SUPPORTIVE SERVICES PUBLIC
AUTHORITY, a public entity; and COUNTY OF
PLACER
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF PLACER - CIVIL/ROSEVILLE
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12
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MH 13 BRUCE PAUL SELTER, Case No.: S-CV-0042984.
9 14 Plaintiff, DEFENDANTS PLACER COUNTY IN-
ae
ae HOME SUPPORTIVE SERVICES
ana 15 Vv. PUBLIC AUTHORITY AND COUNTY OF
PLACER’S REPLY TO MOTION FOR
16 KELLY JEANNE JAMES; BRIAN JAMES; SUMMARY JUDGMENT OR IN THE
COUNTY OF PLACER; and DOES 1-25, ALTERNATIVE SUMMARY
17 ADJUDICATION OF ISSUES
goa
Defendants.
18 December 3, 2020
8:30am.
19 AND RELATED CROSS-ACTION(S). Dept: 42
Action Filed: 6, 2019
Trial Date: Anni 19, 2021
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DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION OF ISSUES
Defendant/Cross-Complainant PLACER COUNTY IN-HOME SUPPORTIVE SERVICES
PUBLIC AUTHORITY (“PCIHSS”) and Defendant COUNTY OF PLACER (“Placer County”)
(collectively, “Defendants”) respectfully submit the following reply in support of their motion for
summary judgment, or in the altemative, summary adjudication
of issues.
I THE INSTANT MOTIONIS TIMELY
Contrary to Plaintiff's assertion, Defendants did not “miss” the 30-day cutoff to hearing this
motion priorto tial. As Defendants stated in their motion, the Court advised defense counsel that
Department 42 would be dark on September 24, 2020; thus, Defendants reserved the first available
hearing date of October 1, 2020. Motion for Summary Judgment (“MSJ”) at p. 2, fn. 1. The Court
10 may, for good cause, elect to hear a motion for summary judgment within 30 days of trial. Code
11 Civ. Proc. § 437c(a)(3). A court cannot refuse to hear a summary judgment motion that was timely
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12 filed pursuant to the Code of Civil Procedure, and Plaintiff does not contend that the motion was
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MH 13 not timely filed orserved. See Wells Fargo Bankv. Superior Court (1988) 206 Cal.App.3d
918, 919
9 14 (court may not refuse to hear summary judgment motion based on local rule in conflict
with the
ana 15 Code of Civil Procedure); Sentry Insurance Co. v. Superior Court (1989) 207 Cal.App.3d 526, 530
16 (atrial court cannot refuse to hear a timely summary judgment motion within the time prescribed
17 by the Code of Civil Procedure
due to scheduling). Nor can a court rule on a motion for summary
18 judgment based on grounds inconsistent
with the statute. See Elkins v. Superior Court (2007) 41
19 Cal.4th 1337, 1352, fn. 8, citing Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64
Cal.App.4th 1252, 1255-1256. Code of Civil Procedure section 437c does not provide for denial of
21 a timely filed motion solely because the hearing occurs within 30 days of trial. Nor may a court
deprive the parties of a hearing on a summary judgment motion. Mediterranean Construction Co.
23 v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 264-265.
24 Moreover, after Defendants’ motion was filed, the parties stipulated to continuing the trial
25 date in this matter to April 19, 2021 at the request
of Plaintiffs counsel, and the hearing
on this
26 motion was continued to December 3, 2020. Declaration of DavidV. Roth (“Roth Decl.”) 42. This
27 is the first time Plaintiff or his counsel has objected to the original hearing date; it was not mentioned.
when
the trial date was continued. Id. 413. Moreover, Plaintiff does not explain in what way, if any,
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DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION OF ISSUES
he would be prejudiced. Indeed, quite
the opposite: because the opposing party’ s response time is
calculated relative to the hearing date, Plaintiff had more time to file an opposition than he would if
the hearing occurred on the originally scheduled date of October 1, 2020. See Code Civ. Proc.
§ 437c(b)(2). Plaintiff’ s timeliness argumentis not well taken.
Il DEFENDANTS ARE STATUTORILY IMMUNE FROM LIABILITY FOR
PLAINTIFF’ S NEGLIGENCE CLAIM
In their motion, Defendants argued that Placer County is immune from liability from claims
arising from the acts of IHSS providers under Welfare & Institutions Code section 12301.6(£)(3),
which provides:
10 Counties and the state shall be immune from any liability resulting from their
implementation of this section in the administration of the In-Home Supportive
11 Services orin the administration of waiver personal care services authorized
under Section 14132.97. Any obligation of the public authority or consortium
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12 pursuant
to this section, whether statutory, contractual, or otherwise, shall
be the
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obligation solely of the public authority or nonprofit consortium, and shall not be the
MH 13 obligation of the county or state.
9 14 Placer County Code section 2.78.080(A) similarly immunizes Placer County from liability:
ana 15 “The County of Placer shall not be liable for, and shall be immune from, any liability resulting from
16 the implementation of Welfare and Institutions Code Section 12301.6 pursuant to this article or any
17 implementing agreement or through the appropriation for payment of funds to the public authority.”
18 PCIHSS is similarly immune from tort liability under Welfare & Institutions Code section
19 12301.6(f)(1), which provides
Any nonprofit consortium contracting with a county pursuant to this section or any
public authorit created pursuant to this section shall be deemed not to be the
21 employer of in- me supportive services personnel or waiver personal care services
personnel referred to recipients under this sectionfor purposes of liability
due to the
negligence or intentional torts of the in-home supportive services personnel or waiver
personal care services personnel
23
Placer County Code section 2.78.080(B)(2) similarly immunizes PCIHSS from tort liability
24
of providers: “The public authority shall not be deemed to be an employer for the purposes of
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liability due to the negligence or intentional acts of any provider.”
26
Plaintiff contends that Placer County is not immune because the alleged negligence of an
27
THSS provider does not stem from “implementation” of the program. Opposition (“Opp.”) at p. 4.
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DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION OF ISSUES
Notably, Plaintiff provides no authority for this proposition. Nor can he: the Welfare & Institutions
Code, as well as the Placer County Code, are clear that, for purposes of tort liability, neither Placer
County nor PCIHSS are statutorily immune from claims arising from the alleged negligence of an.
THSS provider, which are the sole issues presented for summary judgment or adjudication.
Plaintiff contends that Defendants did not comply with the procedural requirements of
section 12301.6. Opp. at pp. 5-7. This entire argument is premised on Defendants’ alleged failure to
fileastatement required by Govemment Code section 53051. Evenif that were true, loss of statutory
immumity is plainly not the remedy. Plaintiff cites Wilson v. San Francisco Redevelopment Agency
(1977) 19 Cal.3d 555 for this proposition, but Wilson is entirely distinguishable. There, the plaintiff
10 alleged that the redevelopment agency’ s information statement was so inaccurate it did not conform.
11 to the requirements of Government Code section 53051. Id. at 558. As a result, the plaintiff argued,
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12 his untimely claim against the agency should be excused. Id. The Supreme Court in Wilson held
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MH 13 only that a public entity’s failure to substantially comply with Govemment Code section 53051
9 14 relieved the plaintiff of the duty to bring a claim under the Tort Claims Act prior to filing a civil
ana 15 suit. Id. at 560. Applicability of Welfare & Institutions Code section 12301.6, and whether a
16 purported failure to comply with Goverment Code section 53051 stripped a public entity of
17 statutory immunity, was not an issue before the Court. “It is axiomatic that cases are not authority
18 for propositions not considered.” Sonic-CalabasasA, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1160
19 (cleaned up). Plaintiffs “suggestion” that failure to comply with Govemment Code section 53051
results in loss of statutory immunity
under Welfare & Institutions Code section 12301.6 is aquanhim
21 leap wholly unsupported by case or statutory authority.
Inany event, Defendants did comply with Govemment Code section 53051. As noted in the
23 Declaration of Greg Wamer, the required statement
was filed in January 2003 and acknowledged.
24 by the Secretary of State. Atno time did Plaintiff request this information through discovery; indeed,
25 Plaintiff's opposition is the first time Plaintiff has raised Govemment Code section 53051’s
26 requirements
as an issue. Roth Decl. {]4. Defendants respectfully request that the Court exercise its
27 discretionto consider
the section 53051 statement, attached as Exhibit 9 to the Declaration of Greg
Wamer, and provide Plaintiff an opportunity to respondto this new evidence, if the Court deems it
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DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION OF ISSUES
necessary. See Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171,
1189-1190; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538 (evidence submittedto fill gaps in
evidence created by opposition may be appropriately considered in a reply); Los Angeles Unified.
Sch. Dist. v. Torres Const. Corp. (Oct. 26, 2020, B291940) — Cal.App.5th (2020 Cal. App.
LEXIS 1087), opn. ordered pub. Nov. 17, 2020 (same).
Ill. PCIHSSISNOT VICARIOUSLY LIABLE BECAUSE IT IS NOT THE EMPLOYER
OF IHSS PERSONNEL
Plaintiff advances a novel legal theory: namely, that despite the Legislature’ s unequivocal
statementto the contrary, PCIHSS personnel are employees of Defendants. This theory flies in the
10 face of section 12301.6(£)(1), which provides, “Any nonprofit consortium contracting with a county
11 pursuant
to this section
or any public authority
created pursuant to this section shall be deemed
not
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12 to be the employer of in-home supportive services personnel or waiver personal care services
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MH 13 personnel referredto recipients under this section for purposes of liability due to the negligence or
9 14 intentional torts of the in-home supportive services personnel or waiver personal care services
ana 15
16 Plaintiff cites Guerrero v. Superior Court (2013) 213 Cal.App.4th 912 for this proposition,
17 but Guerrero is plainly inapposite to the facts of this case. Guerrero involved
a wage and hour
18 claim, not a negligence claim like the case at bar. Id. at 917-918. In reaching its holding, the Court
19 of Appeal in Guerrero acknowledged that “ ‘[t]he IHSS statutes treat providers as employees for
some purposes, but not forall.’ ” Id. at 926 (citing Basden v. Wagner (2010) 181 Cal.App.4th 929).
21 After an extensive discussion of federal law (including the Fair Labor Standards Act) and state
workers’ compensation law, the Court of Appeal held that for purposes of wage and hour claims,
23 THSS providers are employees of counties. See Guerrero, at 912 (“The county and public authority
24 were not exempt from Califomia wage and hour laws”), 920 (“The threshold issue here is whether
25 County, Public Authority, or both of them were Guerrero’s ‘employer’ for purposes of federal and.
26 state wage and hour laws”). What
the Court of Appeal did not do is (1) purportto abrogate section.
27 12301.6 with respect to negligence actions, or (2) discuss the issue of negligence or tort liability at
all, as Guerrero case dealt only with wage and hour claims. “It is axiomatic that cases are not
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DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION OF ISSUES
authority for propositions not considered.” Sonic-Calabasas A, supra, 57 Cal.4th at 1160 (cleaned
up). Guerrero is therefore unavailing, as it has nothing to do with a county or IHSS provider's
liability for negligence."
Similarly, Plaintiff cites the Supreme Court’s recent opinion in Dynamex Operations West,
Inc. v. Superior Court (2018) 4 Cal.5th 903 for the same proposition. Opp. at p. 9. However, as with
his citation to Guerrero, Plaintiff ignores that Dynamex
was a wage and hour case, not a tort liability
case.” Plaintiff further argues that Labor
Code section 2750.3, added
by AB 5 (Stats. 2019, ch. 296,
§ 2) codifies the Dynamex decision. Opp. at pp. 8-9. However, Labor Code section 2750.3 was
repealed by the Legislature earlier this year. See Stats. 2020, ch. 38, § 1. Evenif Labor
Code section.
10 2750.3 were still operative, it suffers from the same problems as Plaintiff’s reliance on Guerrero
11 and Dynamex; namely, that by its terms, Labor Code former section 2750.3 applied “[flor purposes
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12 of the provisions of this code [i.e., the Labor Code] and the Unemployment Insurance Code, and for
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MH 13 the wage orders of the Industrial Welfare Commission ....” Lab. Code, former § 2750.3(a)(1).
9 14 Plaintiff cites no authority holding that classifying a person as an employee for purposes of wage
ana 15 and hour law or workers’ compensation automatically renders that person an employee for purposes
16 of tort liability. In fact, Guerrero recognized
that “ ‘[t]he IHSS statutes treat providers as employees
17 for some purposes, but not for all.’ ” Guerrero, supra, 213 Cal.App.4th
at 926.5
18 Finally, Plaintiff contends that PCIHSS personnel are, in fact, employees of Placer County,
19 notwithstanding Welfare & Institutions Code section 12301.6 or Placer County Code section
2.78.010. It is unclear whether Plaintiff contends that the alleged failure to file a Govemment Code
21
1
As the Court of Appeal noted in Skidgel v. California Unemployment Ins. Appeals Bd. (2018)
24 Cal.App.5th 574, 581, “If a county establishes a public authority or contracts with a nonprofit
23
consortium, those entities are deemed the employer for purposes of collective bargaining, but not
24 for purposes of liability due to negligence or intentional torts of providers.”
2
Research has not revealed any Supreme Court decisions orpublished opinions of the Courts
25 of Appeal applying Dynamex or Guerrero beyond the context of employment law claims such as
26 wage and hour cases, unemployment insurance, collective bargaining, or workers’ compensation.
3
While Defendant appreciates Plaintiff's analogy to ducks, the more appropriate metaphor,
27 based on binding case authority, is, “Courts have held that if it walks like a duck, quacks
like a duck,
and looks like a duck, the Legislature has nevertheless deemed it to be a duck for some purposes but
not for others.”
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DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION OF ISSUES
section 53051 statement strips Defendants of the immunities providingby the foregoing statute and
ordinance, or whether Plaintiff contends the immunities would not apply in any case. Regardless,
Plaintiff's sole basis for this contention is the deposition testimony of Patrice Melusky, an
administrative technician, who testified that PCIHSS is “a pi ’ with no employees. Plaintiff
jumps to the conclusion that PCIHSS must therefore be an “alter ego” of Placer County, and
speculates that, therefore, all PCIHSS personnel must necessarily be employees for all purposes.
But a motion for summary judgment cannotbe defeated by speculation. See Myricks v. Lynwood.
Unified Sch. Dist. (1999) 74 Cal.App.4th 231, 237 (“an issue of fact is not raised
by cryptic, broadly
phrased, and conclusory assertions, or mere possibilities”).
10 While Melusky may be an employee of Placer County, that does not mean that PCIHSS
11 personnel who provide in-home supportive services are. As noted previously, Welfare & Institutions
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12 Code section 12301.6(f)(1) provides that entities such as PCIHSS are not employers of “in-home
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MH 13 supportive services personnel” for purposes of tort liability. “[T]he Legislature defined IHSS
9 14 providers as employees for limited circumstances, but undisputedly not for all circumstances.”
ana 15 Basdenv. Wagner (2010) 181 Cal.App.4th 929, 940. Melusky’s testimony does not create atriable
16 issue of fact, as “ ‘[t]he IHSS statutes treat providers as employees for some purposes, but not for
17 all.’ ” Guerrero, supra, 213 Cal.App.4th at 926. In fact, Melusky’s testimony confirms that IHSS
18 personnel are not employees of either PCIHSS or Placer County. Moreover, the fact that the
19 Legislature repealed Welfare & Institutions Code, former section 12302.25 (Stats. 2017, ch. 25,
§18)—which, until 2017, provided
that IHSS personnel were considered county employees—further
21 demonstrates that it no longer intended IHSS personnel to be considered. county employees.
IV. DEFEDNDANISARE NOT DIRECTLY LIABLE
23 Plaintiff contends that, notwithstanding Welfare & Institutions Code section 12301.6,
24 Defendants are independently liable to Plaintiff for negligent hiring, training and/or supervision of
25 THSS providers. Opp. at pp. 3-5. They
are not.
26 A. Plaintiff s Argument Is Properly Rejected Because It Was Not Pleaded
27 As an initial matter, this theory is missing from the operative complaint, which alleges only
motor vehicle negligence. The sole facts supporting this cause of action are: “Plaintiff alleges the
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DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION OF ISSUES
acts of defendant
were negligent; the acts were the legal (proximate) cause
of injuries and damages
to plaintiff; the acts occurred on (date): September 18, 2018 at (place) Joiner Parkway near Moore
Road, City of Lincoln, County of Placer, State of Califomia.” Compendium, Ex. 1 at p. 4. The
complaint states that “County of Placer’ employed the persons who operated the vehicle in the
course of their employment. Id. Thus, a plain reading of the Complaint suggests that Plaintiff
intended to rely on vicarious liability to recover from Defendants.
It is well established that the issues to be resolved on summary judgment are defined by the
Pleadings. A defendant moving for summary judgment “need only demonstrate the absence of
triable issues of material fact as to those bases of liability the plaintiff has pleaded.” Sanchez v.
10 Swinerton & Walberg (1996) 47 Cal.App.4th 1461, 1465 (emphasis added). A plaintiff camot avoid
11 summary judgment by resorting to theories that have not been pleaded. Government Employees
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12 Insurance Co. v. Superior Court (2000) 79 Cal.App.4th 95, 99, fn. 4. “Thus, a ‘defendant moving
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MH 13 for summary judgment need address only the issues raisedby the complaint; the plaintiff cannot
9 14 bring up new, unpleaded issues in his or her opposing papers.’ ” Laabs v. City of Victorville (2008)
ana 15 163 Cal.App.4th 1242, 1253 (citation omitted).
16 Plaintiff's Complaint does not articulate a cause of action for direct negligence based on
17 negligent hiring, training, or supervision as to Defendants; it makes only a reference to Placer
18 County being Defendant James’s employer. Nor does Plaintiff’ s govemment claim against PIHSS
19 (Compendium, Ex. 2 at p. 10) mention any direct liability whatsoever. Laabs, and the cases
discussed therein, are on point. In Laabs, the operative complaint asserted “premises liability”
21 against the City of Victorville fornegligent design of an intersection. Laabs, supra, 163 Cal.App.4th
at 1249-1250. The city moved for summary judgment on the basis of design immunity anda lack of
23 control over the intersection. Id. at 1250. In opposition, the plaintiff added a new argument,
24 unpleaded
in the complaint: that the placement of a light pole contributed to the severity of her
25 injuries. The Court of Appeal held that the plaintiff could not raise the danger of the light pole for
26 the first time in opposition to a motion for summary judgment. Id. at 1258. In so doing, the Court
27 discussed Fall River J oint Unified Sch. Dist. v. Superior Court (1988) 206 Cal.App.3d
431, in which
the plaintiff’ s govemment
claim and civil complaint alleged premises liability
based on a dangerous
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DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION OF ISSUES
condition and negligent maintenance of the school premises. Eight months after filing the complaint,
the plaintiff amended to add a third count of negligent supervision of students, which did not appear
inthe govemment
claim. Id. at 434. The Court of Appeal reversed
the trial court’s denial of amotion.
for judgment on the pleadings, holding, “The third cause of action patently attempts to premise
liability on an entirely different factual basis than what was set forth in the tort claim.” Id. at 435.
Here as well, Plaintiff's attempt to create a “moving target” must fail for two reasons.
Plaintiff cannot now raise a new, unpleaded theory of liability
in opposition to amotion forsummary
judgment. Laabs, supra, 163 Cal.App.4that 1258, fn. 7 (“To allow an issue that has not been pled
to be raised in opposition to a motion for summary judgment in the absence of an amended pleading,
10 allows nothing more than a moving target”). Nor can Plaintiff add an additional theory of liability
11 that wes not present in the govemment claim Fall River, supra, 206 Cal.App.3d at 435.
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12 Accordingly, the Court should reject Plaintiff's arguments about direct negligence on the part of
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MH 13 Defendants.
9 14 B Defendants Are Not Liable for Negligent Hiring, Supervision
or Training
ana 15 Even if the Court entertains Plaintiff’ s improperly added claims of direct negligence (which
16 it should not), these claims fail as a matter of law. As an initial matter, Plaintiff cites no authority
17 whatsoever holding that a county oran IHSS may be held directly liable for a provider's negligence
18 onadirect theory of liability such as negligent supervision or training. Plaintiff cites onlyto Welfare
19 & Institutions Code section 12301.6(£)(3) itself, which provides, in relevant part, “Counties and the
state shall be inimaume from any liability resulting from their implementation of this section
in the
21 administration of the In-Home Supportive Services program or in the administration of waiver
personal care services authorized under Section 14132.97.” (Emphasis added.) Similarly,
23 subdivision (f)(1) provides, “Any nonprofit consortium contracting with a county pursuant to this
24 section or any public authority created pursuant to this section shall be deemed not to be the
25 employer of in-home supportive services personnel or waiver personal care services personnel
26 referred to recipients under this section for purposes of liability due to the negligence or
27 intentional torts of the in-home supportive services personnel or waiver personal care services
personnel.” (Emphasis added.)
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DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION OF ISSUES
Moreover, as noted previously, Defendants did not “hire” Defendant James, and Defendant
James wes not an employee of either Placer County or PCIHSS. See Welf. & Inst. Code
§ 12301.6(f)(1), (3); Placer County Code § 2.78.080(A), (B)(2). As a prerequisiteto direct liability
on a theory of negligent hiring, supervision, or training, Defendant James would have to be an
employee of Defendants, which she was not. See Doev. Capital Cities (1996) 50 Cal-App.4th 1038,
1054. Contrary to Plaintiff's assertion (Opp. at p. 2), there is no evidence James was “employed”
by Defendants pursuant
to any “contract” with them whatsoever, and no such purported contract is
to be found in Plaintiff’ s evidence. Consequently, Defendants cannot be liable on a theory of direct
liability because they did not employ James.
10 Forthis Courtto find that the relevant statutes immunize Defendants from vicarious, but not
11 direct, liability wouldbe to nullify their statutory immunity. A court should avoid readinga statute
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12 in such a way as to render some provisions “surplusage.” Moyer v. WCAB (1973) 10 Cal.3d 222,
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MH 13 230. Similarly, “the various parts of a statutory enactment must be harmonized by considering the
9 14 particular clause or section in the context of the statutory framework as a whole.” Id. (citations
ana 15 omitted). The purpose
of the statute
is to exempt counties and agencies from liability for the torts of
16 in-home supportive service personnel. The statute makes no distinction between various types of
17 negligence, and, indeed, applies to both intentional torts and negligence. Applying Plaintiff’s logic,
18 a plaintiff would only have to allege a direct theory of negligence, such as negligent supervision, to
19 strip counties and agencies of their statutory immunity—thus, the statute would shield counties and
agencies from vicarious liability, but not direct liability on a theory of negligent hiring, training, or
21 supervision. This could not have been the Legislature’ s intent, and the Court should not read such a
broad-sweeping loophole into it. A court interpreting a statute should avoid “anomalous or absurd.
23 results that contravene Legislature’ s presumed intent.” Metropolitan Water Dist. v. Superior Court
24 (2004) 32 Cal.4th 491, 522 (citation omitted). And, of course, a public entity is subject to direct
25 liability only as provided
by statute. Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328,
26 341. Plaintiff identifies no statute that would subject Defendants to direct liability.
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DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
SUMMARY ADJUDICATION OF ISSUES
1]/V. CONCLUSION
2 For the foregoing reasons, and those articulated in their motion, Defendants respectfully
request that the Court enter judgment in their favor as a matter of law. Plaintiff
has failed to meet
his burdenof demonstrating
a triable issue of material fact, as the undisputed evidence and relevant
law compel the conclusions that (1) Defendants are statutorily immune from suit in this case; (2)
Defendants are not vicariously liable for Plaintiff’s injury because James was not an employee of
Defendants; and (3) Defendants are not directly liable on the belatedly asserted theory of direct
negligence. Summary judgment is properly entered in favor of Defendants.
10 DATED: November
25, 2020 MANNING & KASS
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ELLROD, RAMIREZ, TRESTER LLP
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13 By:
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David V. Roth
9 14 Attomeys for Defendant/Cross-Complainant,
PLACER COUNTY IN-HOME SUPPORTIVE
ana 15 SERVICES PUBLIC AUTHORITY, apublic
16 entity; and COUNTY OF PLACER
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DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE
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Preview
ELECTRONICALLY FILED Superior Court of California, County of Placer 11/25/2020 By: Laurel Sanders, Deputy Clerk DavidV. Roth (State Bar No.: 194648) Evgenia Jansen (State Bar No.: 325039) com MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP One Califomia Street, Floor gh San Francisco, CA 94111 Telephone: (415) 217-6990 Facsimile: (415) 217-6999 Attol for Defendant/Cross-Complainant, FILING FEE EXEMPT PURSUANTTO PLAC! COUNTY IN-HOME GOVERNMENT CODE § 6108 SUPPORTIVE SERVICES PUBLIC AUTHORITY, a public entity; and COUNTY OF PLACER 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF PLACER - CIVIL/ROSEVILLE QR 12 sm MH 13 BRUCE PAUL SELTER, Case No.: S-CV-0042984. 9 14 Plaintiff, DEFENDANTS PLACER COUNTY IN- ae ae HOME SUPPORTIVE SERVICES ana 15 Vv. PUBLIC AUTHORITY AND COUNTY OF PLACER’S REPLY TO MOTION FOR 16 KELLY JEANNE JAMES; BRIAN JAMES; SUMMARY JUDGMENT OR IN THE COUNTY OF PLACER; and DOES 1-25, ALTERNATIVE SUMMARY 17 ADJUDICATION OF ISSUES goa Defendants. 18 December 3, 2020 8:30am. 19 AND RELATED CROSS-ACTION(S). Dept: 42 Action Filed: 6, 2019 Trial Date: Anni 19, 2021 21 23 //1 24 //1 25 //1 26 //1 27 //1 //1 DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Defendant/Cross-Complainant PLACER COUNTY IN-HOME SUPPORTIVE SERVICES PUBLIC AUTHORITY (“PCIHSS”) and Defendant COUNTY OF PLACER (“Placer County”) (collectively, “Defendants”) respectfully submit the following reply in support of their motion for summary judgment, or in the altemative, summary adjudication of issues. I THE INSTANT MOTIONIS TIMELY Contrary to Plaintiff's assertion, Defendants did not “miss” the 30-day cutoff to hearing this motion priorto tial. As Defendants stated in their motion, the Court advised defense counsel that Department 42 would be dark on September 24, 2020; thus, Defendants reserved the first available hearing date of October 1, 2020. Motion for Summary Judgment (“MSJ”) at p. 2, fn. 1. The Court 10 may, for good cause, elect to hear a motion for summary judgment within 30 days of trial. Code 11 Civ. Proc. § 437c(a)(3). A court cannot refuse to hear a summary judgment motion that was timely QR 12 filed pursuant to the Code of Civil Procedure, and Plaintiff does not contend that the motion was sm MH 13 not timely filed orserved. See Wells Fargo Bankv. Superior Court (1988) 206 Cal.App.3d 918, 919 9 14 (court may not refuse to hear summary judgment motion based on local rule in conflict with the ana 15 Code of Civil Procedure); Sentry Insurance Co. v. Superior Court (1989) 207 Cal.App.3d 526, 530 16 (atrial court cannot refuse to hear a timely summary judgment motion within the time prescribed 17 by the Code of Civil Procedure due to scheduling). Nor can a court rule on a motion for summary 18 judgment based on grounds inconsistent with the statute. See Elkins v. Superior Court (2007) 41 19 Cal.4th 1337, 1352, fn. 8, citing Sierra Craft, Inc. v. Magnum Enterprises, Inc. (1998) 64 Cal.App.4th 1252, 1255-1256. Code of Civil Procedure section 437c does not provide for denial of 21 a timely filed motion solely because the hearing occurs within 30 days of trial. Nor may a court deprive the parties of a hearing on a summary judgment motion. Mediterranean Construction Co. 23 v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 264-265. 24 Moreover, after Defendants’ motion was filed, the parties stipulated to continuing the trial 25 date in this matter to April 19, 2021 at the request of Plaintiffs counsel, and the hearing on this 26 motion was continued to December 3, 2020. Declaration of DavidV. Roth (“Roth Decl.”) 42. This 27 is the first time Plaintiff or his counsel has objected to the original hearing date; it was not mentioned. when the trial date was continued. Id. 413. Moreover, Plaintiff does not explain in what way, if any, 2 DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES he would be prejudiced. Indeed, quite the opposite: because the opposing party’ s response time is calculated relative to the hearing date, Plaintiff had more time to file an opposition than he would if the hearing occurred on the originally scheduled date of October 1, 2020. See Code Civ. Proc. § 437c(b)(2). Plaintiff’ s timeliness argumentis not well taken. Il DEFENDANTS ARE STATUTORILY IMMUNE FROM LIABILITY FOR PLAINTIFF’ S NEGLIGENCE CLAIM In their motion, Defendants argued that Placer County is immune from liability from claims arising from the acts of IHSS providers under Welfare & Institutions Code section 12301.6(£)(3), which provides: 10 Counties and the state shall be immune from any liability resulting from their implementation of this section in the administration of the In-Home Supportive 11 Services orin the administration of waiver personal care services authorized under Section 14132.97. Any obligation of the public authority or consortium QR 12 pursuant to this section, whether statutory, contractual, or otherwise, shall be the sm obligation solely of the public authority or nonprofit consortium, and shall not be the MH 13 obligation of the county or state. 9 14 Placer County Code section 2.78.080(A) similarly immunizes Placer County from liability: ana 15 “The County of Placer shall not be liable for, and shall be immune from, any liability resulting from 16 the implementation of Welfare and Institutions Code Section 12301.6 pursuant to this article or any 17 implementing agreement or through the appropriation for payment of funds to the public authority.” 18 PCIHSS is similarly immune from tort liability under Welfare & Institutions Code section 19 12301.6(f)(1), which provides Any nonprofit consortium contracting with a county pursuant to this section or any public authorit created pursuant to this section shall be deemed not to be the 21 employer of in- me supportive services personnel or waiver personal care services personnel referred to recipients under this sectionfor purposes of liability due to the negligence or intentional torts of the in-home supportive services personnel or waiver personal care services personnel 23 Placer County Code section 2.78.080(B)(2) similarly immunizes PCIHSS from tort liability 24 of providers: “The public authority shall not be deemed to be an employer for the purposes of 25 liability due to the negligence or intentional acts of any provider.” 26 Plaintiff contends that Placer County is not immune because the alleged negligence of an 27 THSS provider does not stem from “implementation” of the program. Opposition (“Opp.”) at p. 4. 3 DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Notably, Plaintiff provides no authority for this proposition. Nor can he: the Welfare & Institutions Code, as well as the Placer County Code, are clear that, for purposes of tort liability, neither Placer County nor PCIHSS are statutorily immune from claims arising from the alleged negligence of an. THSS provider, which are the sole issues presented for summary judgment or adjudication. Plaintiff contends that Defendants did not comply with the procedural requirements of section 12301.6. Opp. at pp. 5-7. This entire argument is premised on Defendants’ alleged failure to fileastatement required by Govemment Code section 53051. Evenif that were true, loss of statutory immumity is plainly not the remedy. Plaintiff cites Wilson v. San Francisco Redevelopment Agency (1977) 19 Cal.3d 555 for this proposition, but Wilson is entirely distinguishable. There, the plaintiff 10 alleged that the redevelopment agency’ s information statement was so inaccurate it did not conform. 11 to the requirements of Government Code section 53051. Id. at 558. As a result, the plaintiff argued, QR 12 his untimely claim against the agency should be excused. Id. The Supreme Court in Wilson held sm MH 13 only that a public entity’s failure to substantially comply with Govemment Code section 53051 9 14 relieved the plaintiff of the duty to bring a claim under the Tort Claims Act prior to filing a civil ana 15 suit. Id. at 560. Applicability of Welfare & Institutions Code section 12301.6, and whether a 16 purported failure to comply with Goverment Code section 53051 stripped a public entity of 17 statutory immunity, was not an issue before the Court. “It is axiomatic that cases are not authority 18 for propositions not considered.” Sonic-CalabasasA, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1160 19 (cleaned up). Plaintiffs “suggestion” that failure to comply with Govemment Code section 53051 results in loss of statutory immunity under Welfare & Institutions Code section 12301.6 is aquanhim 21 leap wholly unsupported by case or statutory authority. Inany event, Defendants did comply with Govemment Code section 53051. As noted in the 23 Declaration of Greg Wamer, the required statement was filed in January 2003 and acknowledged. 24 by the Secretary of State. Atno time did Plaintiff request this information through discovery; indeed, 25 Plaintiff's opposition is the first time Plaintiff has raised Govemment Code section 53051’s 26 requirements as an issue. Roth Decl. {]4. Defendants respectfully request that the Court exercise its 27 discretionto consider the section 53051 statement, attached as Exhibit 9 to the Declaration of Greg Wamer, and provide Plaintiff an opportunity to respondto this new evidence, if the Court deems it 4 DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES necessary. See Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1189-1190; Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1538 (evidence submittedto fill gaps in evidence created by opposition may be appropriately considered in a reply); Los Angeles Unified. Sch. Dist. v. Torres Const. Corp. (Oct. 26, 2020, B291940) — Cal.App.5th (2020 Cal. App. LEXIS 1087), opn. ordered pub. Nov. 17, 2020 (same). Ill. PCIHSSISNOT VICARIOUSLY LIABLE BECAUSE IT IS NOT THE EMPLOYER OF IHSS PERSONNEL Plaintiff advances a novel legal theory: namely, that despite the Legislature’ s unequivocal statementto the contrary, PCIHSS personnel are employees of Defendants. This theory flies in the 10 face of section 12301.6(£)(1), which provides, “Any nonprofit consortium contracting with a county 11 pursuant to this section or any public authority created pursuant to this section shall be deemed not QR 12 to be the employer of in-home supportive services personnel or waiver personal care services sm MH 13 personnel referredto recipients under this section for purposes of liability due to the negligence or 9 14 intentional torts of the in-home supportive services personnel or waiver personal care services ana 15 16 Plaintiff cites Guerrero v. Superior Court (2013) 213 Cal.App.4th 912 for this proposition, 17 but Guerrero is plainly inapposite to the facts of this case. Guerrero involved a wage and hour 18 claim, not a negligence claim like the case at bar. Id. at 917-918. In reaching its holding, the Court 19 of Appeal in Guerrero acknowledged that “ ‘[t]he IHSS statutes treat providers as employees for some purposes, but not forall.’ ” Id. at 926 (citing Basden v. Wagner (2010) 181 Cal.App.4th 929). 21 After an extensive discussion of federal law (including the Fair Labor Standards Act) and state workers’ compensation law, the Court of Appeal held that for purposes of wage and hour claims, 23 THSS providers are employees of counties. See Guerrero, at 912 (“The county and public authority 24 were not exempt from Califomia wage and hour laws”), 920 (“The threshold issue here is whether 25 County, Public Authority, or both of them were Guerrero’s ‘employer’ for purposes of federal and. 26 state wage and hour laws”). What the Court of Appeal did not do is (1) purportto abrogate section. 27 12301.6 with respect to negligence actions, or (2) discuss the issue of negligence or tort liability at all, as Guerrero case dealt only with wage and hour claims. “It is axiomatic that cases are not 5 DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES authority for propositions not considered.” Sonic-Calabasas A, supra, 57 Cal.4th at 1160 (cleaned up). Guerrero is therefore unavailing, as it has nothing to do with a county or IHSS provider's liability for negligence." Similarly, Plaintiff cites the Supreme Court’s recent opinion in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 for the same proposition. Opp. at p. 9. However, as with his citation to Guerrero, Plaintiff ignores that Dynamex was a wage and hour case, not a tort liability case.” Plaintiff further argues that Labor Code section 2750.3, added by AB 5 (Stats. 2019, ch. 296, § 2) codifies the Dynamex decision. Opp. at pp. 8-9. However, Labor Code section 2750.3 was repealed by the Legislature earlier this year. See Stats. 2020, ch. 38, § 1. Evenif Labor Code section. 10 2750.3 were still operative, it suffers from the same problems as Plaintiff’s reliance on Guerrero 11 and Dynamex; namely, that by its terms, Labor Code former section 2750.3 applied “[flor purposes QR 12 of the provisions of this code [i.e., the Labor Code] and the Unemployment Insurance Code, and for sm MH 13 the wage orders of the Industrial Welfare Commission ....” Lab. Code, former § 2750.3(a)(1). 9 14 Plaintiff cites no authority holding that classifying a person as an employee for purposes of wage ana 15 and hour law or workers’ compensation automatically renders that person an employee for purposes 16 of tort liability. In fact, Guerrero recognized that “ ‘[t]he IHSS statutes treat providers as employees 17 for some purposes, but not for all.’ ” Guerrero, supra, 213 Cal.App.4th at 926.5 18 Finally, Plaintiff contends that PCIHSS personnel are, in fact, employees of Placer County, 19 notwithstanding Welfare & Institutions Code section 12301.6 or Placer County Code section 2.78.010. It is unclear whether Plaintiff contends that the alleged failure to file a Govemment Code 21 1 As the Court of Appeal noted in Skidgel v. California Unemployment Ins. Appeals Bd. (2018) 24 Cal.App.5th 574, 581, “If a county establishes a public authority or contracts with a nonprofit 23 consortium, those entities are deemed the employer for purposes of collective bargaining, but not 24 for purposes of liability due to negligence or intentional torts of providers.” 2 Research has not revealed any Supreme Court decisions orpublished opinions of the Courts 25 of Appeal applying Dynamex or Guerrero beyond the context of employment law claims such as 26 wage and hour cases, unemployment insurance, collective bargaining, or workers’ compensation. 3 While Defendant appreciates Plaintiff's analogy to ducks, the more appropriate metaphor, 27 based on binding case authority, is, “Courts have held that if it walks like a duck, quacks like a duck, and looks like a duck, the Legislature has nevertheless deemed it to be a duck for some purposes but not for others.” 6 DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES section 53051 statement strips Defendants of the immunities providingby the foregoing statute and ordinance, or whether Plaintiff contends the immunities would not apply in any case. Regardless, Plaintiff's sole basis for this contention is the deposition testimony of Patrice Melusky, an administrative technician, who testified that PCIHSS is “a pi ’ with no employees. Plaintiff jumps to the conclusion that PCIHSS must therefore be an “alter ego” of Placer County, and speculates that, therefore, all PCIHSS personnel must necessarily be employees for all purposes. But a motion for summary judgment cannotbe defeated by speculation. See Myricks v. Lynwood. Unified Sch. Dist. (1999) 74 Cal.App.4th 231, 237 (“an issue of fact is not raised by cryptic, broadly phrased, and conclusory assertions, or mere possibilities”). 10 While Melusky may be an employee of Placer County, that does not mean that PCIHSS 11 personnel who provide in-home supportive services are. As noted previously, Welfare & Institutions QR 12 Code section 12301.6(f)(1) provides that entities such as PCIHSS are not employers of “in-home sm MH 13 supportive services personnel” for purposes of tort liability. “[T]he Legislature defined IHSS 9 14 providers as employees for limited circumstances, but undisputedly not for all circumstances.” ana 15 Basdenv. Wagner (2010) 181 Cal.App.4th 929, 940. Melusky’s testimony does not create atriable 16 issue of fact, as “ ‘[t]he IHSS statutes treat providers as employees for some purposes, but not for 17 all.’ ” Guerrero, supra, 213 Cal.App.4th at 926. In fact, Melusky’s testimony confirms that IHSS 18 personnel are not employees of either PCIHSS or Placer County. Moreover, the fact that the 19 Legislature repealed Welfare & Institutions Code, former section 12302.25 (Stats. 2017, ch. 25, §18)—which, until 2017, provided that IHSS personnel were considered county employees—further 21 demonstrates that it no longer intended IHSS personnel to be considered. county employees. IV. DEFEDNDANISARE NOT DIRECTLY LIABLE 23 Plaintiff contends that, notwithstanding Welfare & Institutions Code section 12301.6, 24 Defendants are independently liable to Plaintiff for negligent hiring, training and/or supervision of 25 THSS providers. Opp. at pp. 3-5. They are not. 26 A. Plaintiff s Argument Is Properly Rejected Because It Was Not Pleaded 27 As an initial matter, this theory is missing from the operative complaint, which alleges only motor vehicle negligence. The sole facts supporting this cause of action are: “Plaintiff alleges the 7 DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES acts of defendant were negligent; the acts were the legal (proximate) cause of injuries and damages to plaintiff; the acts occurred on (date): September 18, 2018 at (place) Joiner Parkway near Moore Road, City of Lincoln, County of Placer, State of Califomia.” Compendium, Ex. 1 at p. 4. The complaint states that “County of Placer’ employed the persons who operated the vehicle in the course of their employment. Id. Thus, a plain reading of the Complaint suggests that Plaintiff intended to rely on vicarious liability to recover from Defendants. It is well established that the issues to be resolved on summary judgment are defined by the Pleadings. A defendant moving for summary judgment “need only demonstrate the absence of triable issues of material fact as to those bases of liability the plaintiff has pleaded.” Sanchez v. 10 Swinerton & Walberg (1996) 47 Cal.App.4th 1461, 1465 (emphasis added). A plaintiff camot avoid 11 summary judgment by resorting to theories that have not been pleaded. Government Employees QR 12 Insurance Co. v. Superior Court (2000) 79 Cal.App.4th 95, 99, fn. 4. “Thus, a ‘defendant moving sm MH 13 for summary judgment need address only the issues raisedby the complaint; the plaintiff cannot 9 14 bring up new, unpleaded issues in his or her opposing papers.’ ” Laabs v. City of Victorville (2008) ana 15 163 Cal.App.4th 1242, 1253 (citation omitted). 16 Plaintiff's Complaint does not articulate a cause of action for direct negligence based on 17 negligent hiring, training, or supervision as to Defendants; it makes only a reference to Placer 18 County being Defendant James’s employer. Nor does Plaintiff’ s govemment claim against PIHSS 19 (Compendium, Ex. 2 at p. 10) mention any direct liability whatsoever. Laabs, and the cases discussed therein, are on point. In Laabs, the operative complaint asserted “premises liability” 21 against the City of Victorville fornegligent design of an intersection. Laabs, supra, 163 Cal.App.4th at 1249-1250. The city moved for summary judgment on the basis of design immunity anda lack of 23 control over the intersection. Id. at 1250. In opposition, the plaintiff added a new argument, 24 unpleaded in the complaint: that the placement of a light pole contributed to the severity of her 25 injuries. The Court of Appeal held that the plaintiff could not raise the danger of the light pole for 26 the first time in opposition to a motion for summary judgment. Id. at 1258. In so doing, the Court 27 discussed Fall River J oint Unified Sch. Dist. v. Superior Court (1988) 206 Cal.App.3d 431, in which the plaintiff’ s govemment claim and civil complaint alleged premises liability based on a dangerous 8 DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES condition and negligent maintenance of the school premises. Eight months after filing the complaint, the plaintiff amended to add a third count of negligent supervision of students, which did not appear inthe govemment claim. Id. at 434. The Court of Appeal reversed the trial court’s denial of amotion. for judgment on the pleadings, holding, “The third cause of action patently attempts to premise liability on an entirely different factual basis than what was set forth in the tort claim.” Id. at 435. Here as well, Plaintiff's attempt to create a “moving target” must fail for two reasons. Plaintiff cannot now raise a new, unpleaded theory of liability in opposition to amotion forsummary judgment. Laabs, supra, 163 Cal.App.4that 1258, fn. 7 (“To allow an issue that has not been pled to be raised in opposition to a motion for summary judgment in the absence of an amended pleading, 10 allows nothing more than a moving target”). Nor can Plaintiff add an additional theory of liability 11 that wes not present in the govemment claim Fall River, supra, 206 Cal.App.3d at 435. QR 12 Accordingly, the Court should reject Plaintiff's arguments about direct negligence on the part of sm MH 13 Defendants. 9 14 B Defendants Are Not Liable for Negligent Hiring, Supervision or Training ana 15 Even if the Court entertains Plaintiff’ s improperly added claims of direct negligence (which 16 it should not), these claims fail as a matter of law. As an initial matter, Plaintiff cites no authority 17 whatsoever holding that a county oran IHSS may be held directly liable for a provider's negligence 18 onadirect theory of liability such as negligent supervision or training. Plaintiff cites onlyto Welfare 19 & Institutions Code section 12301.6(£)(3) itself, which provides, in relevant part, “Counties and the state shall be inimaume from any liability resulting from their implementation of this section in the 21 administration of the In-Home Supportive Services program or in the administration of waiver personal care services authorized under Section 14132.97.” (Emphasis added.) Similarly, 23 subdivision (f)(1) provides, “Any nonprofit consortium contracting with a county pursuant to this 24 section or any public authority created pursuant to this section shall be deemed not to be the 25 employer of in-home supportive services personnel or waiver personal care services personnel 26 referred to recipients under this section for purposes of liability due to the negligence or 27 intentional torts of the in-home supportive services personnel or waiver personal care services personnel.” (Emphasis added.) 9 DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES Moreover, as noted previously, Defendants did not “hire” Defendant James, and Defendant James wes not an employee of either Placer County or PCIHSS. See Welf. & Inst. Code § 12301.6(f)(1), (3); Placer County Code § 2.78.080(A), (B)(2). As a prerequisiteto direct liability on a theory of negligent hiring, supervision, or training, Defendant James would have to be an employee of Defendants, which she was not. See Doev. Capital Cities (1996) 50 Cal-App.4th 1038, 1054. Contrary to Plaintiff's assertion (Opp. at p. 2), there is no evidence James was “employed” by Defendants pursuant to any “contract” with them whatsoever, and no such purported contract is to be found in Plaintiff’ s evidence. Consequently, Defendants cannot be liable on a theory of direct liability because they did not employ James. 10 Forthis Courtto find that the relevant statutes immunize Defendants from vicarious, but not 11 direct, liability wouldbe to nullify their statutory immunity. A court should avoid readinga statute QR 12 in such a way as to render some provisions “surplusage.” Moyer v. WCAB (1973) 10 Cal.3d 222, sm MH 13 230. Similarly, “the various parts of a statutory enactment must be harmonized by considering the 9 14 particular clause or section in the context of the statutory framework as a whole.” Id. (citations ana 15 omitted). The purpose of the statute is to exempt counties and agencies from liability for the torts of 16 in-home supportive service personnel. The statute makes no distinction between various types of 17 negligence, and, indeed, applies to both intentional torts and negligence. Applying Plaintiff’s logic, 18 a plaintiff would only have to allege a direct theory of negligence, such as negligent supervision, to 19 strip counties and agencies of their statutory immunity—thus, the statute would shield counties and agencies from vicarious liability, but not direct liability on a theory of negligent hiring, training, or 21 supervision. This could not have been the Legislature’ s intent, and the Court should not read such a broad-sweeping loophole into it. A court interpreting a statute should avoid “anomalous or absurd. 23 results that contravene Legislature’ s presumed intent.” Metropolitan Water Dist. v. Superior Court 24 (2004) 32 Cal.4th 491, 522 (citation omitted). And, of course, a public entity is subject to direct 25 liability only as provided by statute. Nasrawi v. Buck Consultants LLC (2014) 231 Cal.App.4th 328, 26 341. Plaintiff identifies no statute that would subject Defendants to direct liability. 27 //1 //1 10 DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES 1]/V. CONCLUSION 2 For the foregoing reasons, and those articulated in their motion, Defendants respectfully request that the Court enter judgment in their favor as a matter of law. Plaintiff has failed to meet his burdenof demonstrating a triable issue of material fact, as the undisputed evidence and relevant law compel the conclusions that (1) Defendants are statutorily immune from suit in this case; (2) Defendants are not vicariously liable for Plaintiff’s injury because James was not an employee of Defendants; and (3) Defendants are not directly liable on the belatedly asserted theory of direct negligence. Summary judgment is properly entered in favor of Defendants. 10 DATED: November 25, 2020 MANNING & KASS ve ELLROD, RAMIREZ, TRESTER LLP 11 QR 12 sm 13 By: MH David V. Roth 9 14 Attomeys for Defendant/Cross-Complainant, PLACER COUNTY IN-HOME SUPPORTIVE ana 15 SERVICES PUBLIC AUTHORITY, apublic 16 entity; and COUNTY OF PLACER 17 18 19 21 23 24 25 26 27 11 DEFENDANTS’ REPLY TO MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION OF ISSUES