Marilyn Alexander v. The City of Santa Monica

rights between QDG and Vanir. The declaratory relief claim therefore fails as a matter of law. d. Request for Continuance Should the court be inclined to grant Vanir's Motion, QDG requests the opportunity to conduct additional discovery, specifically witness depositions of the parties to this lawsuit pursuant to Code of Civil Procedure section 437c, subdivision (h). QDG argues that it has not completed the depositions of key witnesses with knowledge of Vanir's actual work and involvement on the project and such additional discovery is expected to provide facts to support the opposition to the Motion.

Pursuant to section 437c, subdivision (h), "[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due."

The Court finds that QDG does not identify what specific facts might establish a triable issue of fact pertaining to any of the causes of action asserted against Vanir. Moreover, the threshold issue of whether a duty of care exists is a question of law for the court to decide, not a factual question requiring witness testimony. Additional discovery, including depositions of Vanir personnel, will not change the legal conclusion that Ratcliff precludes a duty of care from construction manager to architect.

Whether a legal duty exists must be determined by the court based on the relationship of the parties and policy considerations, not on disputed facts about Vanir's conduct. The Court denies QDG's request for a continuance. The Court does not find that any triable issues of material fact exist as to the causes of action for equitable indemnity, comparative indemnity and apportionment of fault, and declaratory relief, asserted against Vanir. Accordingly, Vanir Construction Management, Inc.'s Motion for Summary Judgment is GRANTED.

The alternative Motions for Summary Adjudication and for Judgment on the Pleadings are denied as moot.

Defendant The City of Santa Monica's Demurrer to the second cause of action in the First Amended Complaint Filed by Plaintiff Marilyn Alexander is SUSTAINED with thirty (30) days leave to amend. Defendant The City of Santa Monica to give notice. Meet and Confer Before filing its demurrer, "the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer." (Code Civ.

Proc. Sec. 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: "(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;" or "(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith." (Id. at subd. (a)(3).)

Defendant's counsel states that she spoke with opposing counsel via telephone and by letter regarding the requirements to state a claim for breach of mandatory duty as to Plaintiff's original complaint. (Ford Decl., P. 2.) On March 23, 2026, she spoke with opposing counsel once more after receiving a copy of the first amended complaint, informing opposing counsel that Defendant intended to file a demurrer to the cause of action for breach of mandatory duty on the grounds that Plaintiff failed to state a cause of action. (Id., P. 4.)

The Court finds Defendant's meet and confer efforts to be sufficient and turns to the demurrer's merits. Second Cause of Action: Breach of Mandatory Duty by Government Employee, per Government Code Sec. 815.6 Government Code section 815.6 states: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an

injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." (Gov. Code, Sec. 815.6.) "Enactment" is defined as "a constitutional provision, statute, charter, provision, ordinance or regulation." (Gov. Code, Sec. 810.6.) Plaintiff alleges that Defendant was legally obligated to comply with the following enactments: (1) Santa Monica Right-of-Way Management Regulations, SMMC Chapter 7.06; (2) Public Works General Notes; (3) California Public Utilities Code Section 8054; (4) California Public Utilities Code General Order 128, Rules 32.3, 32.7; and/or (5) Industry standards such as: ASTM C857. (FAC P. 38.)

First, industry standards are not "enactments" as defined by Government Code section 810.6; thus, they cannot impose a mandatory duty on Defendant. Second, Plaintiff does not specify which "Public Works General Notes" she is referring to in the FAC, and neither party addresses the Notes in their moving papers. Therefore, the Court finds this too fails to serve as an "enactment" imposing a mandatory duty on Defendant. Third, as to SMMC Chapter 7.06, Plaintiff's argument that Defendant is not exempt from the provisions of this Chapter because the FAC does not clearly allege that the utility box is city-owned is illogical. (Opp., at p. 6.)

Plaintiff alleges in the FAC that Defendant "is engaged in the business of owning, leasing, licensing, operating, purchasing, developing, maintaining, controlling, possessing, and exerting control over the public city sidewalk...which contained an in-ground public sidewalk utility box." (FAC P. 3.) The FAC does not in its entirety mention a third-party utility company. Based on a plain reading of the FAC, Defendant owned the utility box. Thus, because "City-owned utilities and facilities installed in the PROW [Public right-of-way] are exempt from the provisions of this Chapter," it cannot impose a mandatory duty on Defendant.

Lastly, both parties acknowledge that Public Utilities Code section 8054 and CPUC General Order 128 apply to electricity and/or electrical supply. Defendant argues that the enactments do not apply here because the utility box is a water box; Plaintiff argues in opposition that this is an extrinsic fact and the FAC does not allege what kind of a utility box is at issue here. (Opp., at pp. 7-9; Reply at p. 5.) Plaintiff's argument, however, is self-inflicted. Plaintiff has not sufficiently pled that the two enactments apply to Defendant here because the FAC does not allege that the utility box at issue is for electricity or electrical supply.

Accordingly, Defendant's demurrer to the second cause of action is SUSTAINED with leave to amend. CONCLUSION Defendant The City of Santa Monica's Demurrer to the second cause of action in the First Amended Complaint Filed by Plaintiff Marilyn Alexander is SUSTAINED with thirty (30) days leave to amend. Defendant The City of Santa Monica to give notice. | Home -->)" -->