Opinion
F072552
07-24-2017
ALTHEA ROBINSON, Plaintiff and Appellant, v. STATE OF CALIFORNIA, Defendant and Respondent.
Kaufman Kaufman & Miller, Lee A. Miller and Lee Fineman; Beltran, Smith & Mackenzie and Steven P. Beltran for Plaintiff and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Kristin G. Hogue, Assistant Attorney General, Peter A. Meshot and Oliver R. Lewis, Deputy Attorneys General, for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. VCU257237)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Bret D. Hillman, Judge. Kaufman Kaufman & Miller, Lee A. Miller and Lee Fineman; Beltran, Smith & Mackenzie and Steven P. Beltran for Plaintiff and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Kristin G. Hogue, Assistant Attorney General, Peter A. Meshot and Oliver R. Lewis, Deputy Attorneys General, for Defendant and Respondent.
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Plaintiff appeals from a judgment entered after the trial court granted defendant's motion for summary judgment. The motion was based on the insufficiency of the first amended complaint to allege a basis in a statute or other enactment for public entity liability for the death of plaintiff's daughter. We conclude the pleading is insufficient and plaintiff has not demonstrated she could amend it to allege a viable cause of action. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Althea Robinson (plaintiff) sued the State of California (defendant), alleging that defendant's Department of Developmental Services operates the Porterville Developmental Center (PDC), a facility that serves persons with developmental disabilities. While plaintiff's daughter, Denisha Miller, was a patient at PDC, another patient entered Miller's room during the night and killed her by strangulation. Plaintiff alleged Miller's death was proximately caused by PDC's failure to provide adequate or sufficient equipment, personnel or facilities required by statute or regulation prescribing minimum standards for equipment, personnel or facilities. She identified certain regulations defendant allegedly violated. Plaintiff also alleged PDC was negligent in placing Miller and the patient who attacked her in the same ward or area, failing to adequately supervise the patients, providing inadequate security, medical facilities, and medical personnel, and failing to provide prompt medical treatment.
Defendant filed a motion for summary judgment contending the cause of action alleged against it in plaintiff's first amended complaint failed on several grounds, including the ground that it failed to allege any actionable statutory or regulatory violations by defendant because the regulations cited applied to acute psychiatric hospitals and did not apply to PDC, which is a general acute care hospital. Defendant also contended the regulations cited could not form the basis of plaintiff's claim because they did not prescribe minimum standards with which the facility was required to comply. Plaintiff opposed the motion, asserting the regulations alleged in the first amended complaint applied to PDC and were sufficiently specific to provide actionable minimum standards. At oral argument, plaintiff's counsel asserted he had recently discovered a different regulation, applicable to general acute care hospitals, that he wished to add to the first amended complaint; he asked that, if the trial court concluded the regulations alleged in the first amended complaint were not applicable or not sufficient, plaintiff be granted leave to amend to allege the newly discovered regulation. The trial court denied plaintiff's request to amend her pleading, and granted defendant's motion for summary judgment. Judgment was entered, and plaintiff appeals.
DISCUSSION
I. Summary Judgment
A. Standard of review
"We review de novo the trial court's decision to grant summary judgment." (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1168.) Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In moving for summary judgment, a "defendant . . . 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." (Id., subd. (p)(2).) Once the moving defendant has met its initial 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." (Ibid.)
In reviewing a summary judgment, "we apply the same three-step analysis required of the trial court: We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents' claim and justify a judgment in the movant's favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue." (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)
B. Public entity liability
"[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." (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183; see Gov. Code, § 815.) "[I]n California[,] all government tort liability is dependent on the existence of an authorizing statute or 'enactment' [citations], and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. [Citation.] . . . The facts showing the existence of the claimed duty must be alleged. [Citations.] Since the duty of a governmental agency can only be created by statute or 'enactment,' the statute or 'enactment' claimed to establish the duty must at the very least be identified." (Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802.) The plaintiff is also required to "plead facts sufficient to show his [or her] cause of action lies outside the breadth of any applicable statutory immunity." (Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 886.)
All further statutory references are to the Government Code, unless otherwise indicated. --------
In its motion for summary judgment, defendant contended an immunity statute applied:
"(a) Notwithstanding any other provision of this part, except as provided in this section and in Sections 814, 814.2, 855, and 855.2, a public entity is not liable for:
"(1) An injury proximately caused by a patient of a mental institution.
"(2) An injury to an inpatient of a mental institution." (§ 854.8, subd. (a).)
Defendant asserted that, although plaintiff's first amended complaint did not mention the statute, her claim was based on an exception to the immunity of section 854.8 set out in section 855:
"A public entity that operates or maintains any medical facility that is subject to regulation by the State Department of Health Services, Social Services, Developmental Services, or Mental Health is liable for injury proximately caused by the failure of the public entity to provide adequate or sufficient equipment, personnel or facilities required by any statute or any regulation of the State Department of Health Services, Social Services, Developmental Services, or Mental Health prescribing minimum standards for equipment, personnel or facilities, unless the public entity establishes that it exercised reasonable diligence to comply with the applicable statute or regulation." (§ 855, subd. (a).)
Plaintiff did not dispute her claim was based on liability provided for in section 855. She contended liability was premised on the regulations identified in the first amended complaint: California Code of Regulations, title 22, sections 71209, 71225, subdivision (c), 71501, subdivision (a)(3), and 71641, subdivision (a). These regulations are all found in the division and chapter of the California Code of Regulations pertaining to acute psychiatric hospitals. (Cal. Code Regs., tit. 22, div. 5, ch. 2 (commencing with § 71001).)
A. Inapplicability of regulations to PDC
Defendant presented evidence in the form of the declaration of Theresa Billeci, executive director of PDC, that PDC is licensed as a general acute care hospital under Health and Safety Code section 1250; it is not licensed as an acute psychiatric hospital and does not have any acute psychiatric beds on its license. Plaintiff disputed these facts and objected to the portion of Billeci's declaration containing the supporting statements.
The trial court sustained the objections. Nonetheless, in explaining its decision granting defendant's motion for summary judgment, the trial court stated: "[P]laintiff's complaint cites sections 71001 et seq. of Title 22 of the California Code of Regulations. But these regulations apply only to acute psychiatric hospitals, and PDC is licensed only as a General Acute Care Hospital under Health and Safety Code [section ]1250[, subdivision ](a). Thus, sections 71001 et seq. of Title 22 of the California Code of Regulations do not impose any duty, mandatory or otherwise, on PDC."
In determining whether the papers submitted in support of and opposition to a motion for summary judgment "show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court." (Code Civ. Proc., § 437c, subd. (c).) Neither party has challenged the trial court's rulings on plaintiff's evidentiary objections. Consequently, we must disregard the evidence in Billeci's declaration to which objections were sustained by the trial court. Without that evidence, there is no evidence in the record establishing the type of facility PDC operated. Defendant failed to establish PDC was not an acute psychiatric hospital and the cited regulations therefore did not apply.
Consequently, defendant failed to carry its burden of establishing that there are no disputed material facts and it is entitled to judgment as a matter of law, to the extent its motion was based on the ground it is not an acute psychiatric hospital and therefore is not liable for PDC's alleged violations of the regulations cited by plaintiff in her first amended complaint.
B. Lack of specificity in regulations
Defendant's motion for summary judgment also argued that the cited regulations were not sufficiently specific to form the basis for liability under section 855. Section 855 imposes liability on public entities that operate certain medical facilities "for injury proximately caused by the failure of the public entity to provide adequate or sufficient equipment, personnel or facilities required by any statute or any regulation . . . prescribing minimum standards for equipment, personnel or facilities, unless the public entity establishes that it exercised reasonable diligence to comply." (Id., subd. (a).) "Section 815.6 establishes the general policy of public entity liability for damages resulting from the failure to exercise reasonable diligence to discharge mandatory duties imposed by statute or regulation. . . . Section 855, subdivision (a) is a specific application of the general policy established in section 815.6." (Baber v. Napa State Hospital (1989) 209 Cal.App.3d 213, 218, fn. omitted (Baber).)
Section 815.6 provides: "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." It requires " 'a three-pronged test for determining whether liability may be imposed on a public entity: (1) an enactment must impose a mandatory, not discretionary, duty . . . ; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability . . . ; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.' " (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1458; accord, Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498-499 (Haggis).) "Whether an enactment creates a mandatory duty is a question of law: 'Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts.' " (Haggis, supra, at p. 499.)
Section 855 was enacted as part of the Tort Claims Act (§ 810 et seq.). (Baber, supra, 209 Cal.App.3d at p. 217.) The Law Revision Commission, which drafted the Tort Claims Act and recommended its enactment, stated generally: " 'Public entities should be liable for the damages that result from their failure to exercise reasonable diligence to comply with applicable standards of safety and performance established by statute or regulation. Although decisions relating to the facilities, personnel or equipment to be provided in various public services involve discretion and public policy to a high degree, nonetheless, when minimum standards of safety and performance have been fixed by statute or regulation . . . there should be no discretion to fail to comply with those minimum standards.' " (Baber, supra, 209 Cal.App.3d at pp. 217-218, quoting Recommendations Relating to Sovereign Immunity, No. 1, Tort Liability of Public Entities and Public Employees (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963) p. 816.)
"Regarding medical, hospital and public health activities, the Law Revision Commission's recommendations further state: '. . . Although decisions as to the facilities, personnel or equipment to be provided in public medical facilities involve discretion and public policy to a high degree, nonetheless, when minimum standards have been fixed by statute or regulation, there should be no discretion to fail to meet those minimum standards. [¶] This recommendation will leave determinations of the standards to which public hospitals and other public medical facilities must conform in the hands of the persons best qualified to make such determinations and will not leave those standards to the discretion of juries in damage actions. Hence, public entities will know what is expected of them and will continue to be able to make the basic decisions as to the standards and levels of care to be provided in public hospitals and other public medical facilities within the range of discretion permitted by state statutes and regulations.' " (Baber, supra, 209 Cal.App.3d at p. 218, quoting Recommendations Relating to Sovereign Immunity, No. 1, Tort Liability of Public Entities and Public Employees (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963) pp. 829-830.)
In keeping with these recommendations, section 855 imposes liability on a public entity operating a medical facility for failure to comply with a statute or regulation "prescribing minimum standards for equipment, personnel or facilities," not for failure to comply with a statute or regulation that expresses a general policy and requires the public entity to exercise its discretion in determining what equipment, personnel or facilities to employ to carry out that policy.
In Baber, the plaintiff was a patient in a state hospital when he was attacked and injured by other patients. (Baber, supra, 209 Cal.App.3d at p. 215.) He sued the state, alleging various acts of negligence; he contended the state had not complied with required minimum standards for patient safety and welfare. (Id. at p. 216.) At trial, after the plaintiff's counsel made an opening statement, the trial court granted defendant's motion for nonsuit. (Ibid.)
On appeal, the plaintiff cited regulations from title 22 of the California Code of Regulations applicable to acute psychiatric hospitals, including title 22, sections 71225, subdivision (c) (requiring " '[a] sufficient number of appropriate personnel . . . for the safety of the patients' "), 71501, subdivision (a)(3) (requiring " 'appropriate physical resources and personnel required to meet the needs of the patients' "), and 71641, subdivision (a) (providing that " '[t]he hospital shall be clean, sanitary, and in good repair at all times' "). (Baber, supra, 209 Cal.App.3d at p. 220.) He also cited title 22, sections 71227, subdivision (a), and 71621, which required the facility to have a telephone and make it available for patient use. (Baber, supra, at p. 220.) The state contended the standards set out in these regulations were "insufficiently 'quantifiable' or objective to support liability under section 855." (Ibid.)
Despite the statements of the Law Revision Commission and section 855's requirement that, in order to impose liability, the regulations must "prescrib[e] minimum standards for equipment, personnel or facilities," the appellate court rejected the state's argument. (Baber, supra, 209 Cal.App.3d at p. 220.) It stated: "This may well render it more difficult for appellant to meet his ultimate burden of proof, but it does not support a nonsuit on his opening statement. The adequacy of the standards has been entrusted to the Department of Health Services, which has sole authority, and presumably the expertise, to establish minimum standards of operation for state hospitals. Health and Safety Code section 1276 states that standards should be created 'based on the type of health facility and the needs of the persons served thereby.' This implies an understanding by the Legislature of the necessity of creating standards flexible enough to meet the variety and changing needs of psychiatric hospitals and patient populations." (Ibid.) The court reversed the nonsuit, concluding "[w]hether the hospital failed to comply with the minimum standards or exercised reasonable diligence to do so are questions of fact, which cannot be resolved by the instant motion for nonsuit." (Ibid.)
The court in Lockhart v. County of Los Angeles (2007) 155 Cal.App.4th 289 (Lockhart) disagreed with Baber. In Lockhart, the plaintiff's decedent committed suicide while he was a patient in the psychiatric unit of a county general acute care hospital. (Lockhart, supra, at pp. 293-294.) The plaintiff alleged one cause of action for wrongful death, without attempting to plead around the immunity of section 854.8. The defendant moved for summary judgment and the plaintiff invoked regulations from title 22 of the California Code of Regulations in an attempt to find a regulatory basis for his claim. (Lockhart, supra, at pp. 296, 301.) One of the questions presented by the appeal was whether "statutes or regulations setting forth general requirements of 'sufficient' equipment, personnel or facilities [can] be considered regulations 'prescribing minimum standards for equipment, personnel or facilities,' the violation of which triggers the exception from immunity." (Id. at pp. 302-303.)
The court stated section 855 did not impose "liability when the public entity violate[d] any statute or regulation," but only when it violated "those statutes and regulations that 'prescrib[e] minimum standards for equipment, personnel or facilities.' " (Lockhart, supra, 155 Cal.App.4th at p. 307.) After reviewing the same Law Revision Commission recommendations cited in Baber, it concluded section 855 "was intended to impose liability only when the statute or regulation sets forth a specific standard that gives the public medical facility clear notice as to the minimum requirements with which it must comply." (Lockhart, supra, at p. 308.) " 'An enactment creates a mandatory duty if it requires a public agency to take a particular action. [Citation.] An enactment does not create a mandatory duty if it merely recites legislative goals and policies that must be implemented through a public agency's exercise of discretion.' " (Ibid.)
"[A] regulation requiring 'sufficient nursing staff . . . to meet the needs of the patients' sets forth only a general goal within which a public medical facility may exercise its discretion, not a specific minimum standard giving clear notice of the minimum amount of nursing personnel the facility must supply. It sets forth the general policy goal for staffing the psychiatric unit, but does not specifically direct the manner in which that goal is to be attained. This is not the type of regulation 'prescribing minimum standards for equipment, personnel or facilities,' the breach of which can give rise to liability under . . . section 855." (Lockhart, supra, 155 Cal.App.4th at p. 308.) The court concluded that "regulations sufficient to establish liability under . . . section 855 must require something specific of the public entity, and not simply set forth a goal, leaving it to the entity's discretion as to how to meet that goal." (Id. at p. 309.) The regulations the plaintiff cited as the basis for his claim only set forth broad goals, such as requiring " 'sufficient nursing staff . . . to meet the needs of the patients." (Id. at p. 308.) Therefore, they were insufficient to support his claim. (Id. at p. 311.)
We conclude the Lockhart decision is better reasoned than Baber, and consistent with the express language of section 855, as well as the recommendations of the Law Revision Commission. Section 855 requires that liability of a medical facility operated by a public entity be based on "any statute or any regulation . . . prescribing minimum standards for equipment, personnel or facilities." (Id., subd. (a).) Broad regulations that express policies or goals and leave it to the discretion of the medical facility to determine how to implement the policies or meet the goals do not "prescrib[e] minimum standards" with which the facility is required to comply.
The regulations cited in plaintiff's first amended complaint provide: "There shall be adequate space maintained to meet the needs of the service." (Cal. Code Regs, tit. 22, § 71209.) "A sufficient number of appropriate personnel shall be provided for the safety of the patients." (Id., § 71225, subd. (c).) "The governing body shall: [¶] . . . [¶] (3) Provide appropriate physical resources and personnel required to meet the needs of the patients and shall participate in planning to meet the mental health needs of the community." (Id., § 71501, subd. (a)(3).) "The hospital shall be clean, sanitary, and in good repair at all times. Maintenance shall include provision and surveillance of services and procedures for the safety and well-being of patients, personnel and visitors." (Id., § 71641, subd. (a).) These regulations set general goals or policies, expressed in terms of adequacy and sufficiency, leaving it to the entity's discretion to determine how to meet the goals. They do not set "a specific minimum standard giving clear notice of the minimum amount" of space, personnel, or other resources the facility must supply. (Lockhart, supra, 155 Cal.App.4th at p. 308.)
Consequently, even if the regulations cited in plaintiff's first amended complaint apply to the type of facility PDC operates, they are insufficient to form the basis of liability under section 855.
Plaintiff argues that, even if the regulations cited are too broadly worded, they nonetheless required at least one person to be on duty supervising the patients at all times. She asserts the evidence showed no one was on duty, so the regulations were violated. We reject plaintiff's arguments for two reasons. First, as discussed above, the regulations do not prescribe minimum standards and therefore cannot be used as the basis for liability under section 855.
Second, the evidence does not support plaintiff's claim no one was on duty. The evidence cited by plaintiff (portions of the police report of the incident) states only that the patient who attacked decedent told the police officer who interviewed her that "she waited until the staff went up to the tech station," then went to decedent's room, and "she waited until PT Beltran went up to the tech station," then went to decedent's room. Psychiatric technician, Beltran Abad, told police "at approximately 2100 hours he was relieved and he went on his lunch break," "he returned to work at approximately 2130 hours," and when he went to decedent's room later, she was lying on the floor. He walked to the tech station for help, and contacted the registered nurse, who accompanied him to decedent's room. They yelled at "Nick" to bring the crash cart. Subsequently, "Beltran and Nick were doing CPR" on decedent. The nurse told police Abad reported the problem at 2235 hours; PDC officer Gilpin reported that the patient who attacked decedent called him at approximately 2236 hours and again at approximately 2245 hours and stated that she had killed someone. Thus, the record does not support plaintiff's contention that decedent was killed while Abad was on his lunch break or that there was no one else on duty.
The trial court did not err in granting summary judgment in favor of defendant.
II. Leave to Amend
Plaintiff argues that, if the regulations cited in her first amended complaint are insufficient, but there are regulations that prescribe the equipment, personnel, and facilities PDC was required to provide, she should be granted leave to amend to include those regulations in her pleading.
At the hearing of the motion for summary judgment, plaintiff orally requested that, if the regulations cited in her first amended complaint were insufficient, she be granted leave to amend. She cited California Code of Regulations, title 22, section 70217, subdivision (a)(13) as a regulation that is applicable to general acute care hospitals and that specifically requires a one-to-six ratio of nurses to patients on duty at all times. The trial court noted the case had been pending for more than a year and plaintiff's pleading still did not set forth a proper statutory or regulatory basis for her claim. Attempting to explain his failure to discover earlier the regulation he wished to add to his pleading, plaintiff's counsel stated he "did a lot of careful research in this area," but another attorney in his office "researched for about 20 minutes and came up with it." In response, defense counsel complained that defendant filed its motion for summary judgment based on the existing pleading, the discovery, and the trial date, then suddenly, at the last minute, plaintiff presented a new theory that had not been briefed, although plaintiff had had ample time for research. The trial court granted summary judgment and implicitly denied the request for leave to amend. It concluded plaintiff had not offered a satisfactory explanation for the failure to amend earlier to cite authority discovered after brief research, and the regulation plaintiff proposed to add did not raise a triable issue as to defendant's liability.
The trial court has discretion to allow a party to amend its pleading in the interests of justice. (Code Civ. Proc., § 473, subd. (a)(1).) When an order denying leave to amend is challenged on appeal, the trial court's discretion should be upheld unless clearly abused. (Congleton v. National Union Fire Ins. Co. (1987) 189 Cal.App.3d 51, 62.) " 'The burden is on the plaintiff to demonstrate that the trial court abused its discretion.' " (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945 (Berman).) Plaintiff has made no attempt to challenge the trial court's denial of her request for leave to amend, or to show that the denial of the request was an abuse of the trial court's discretion. Rather, plaintiff appears to be requesting that this court grant her leave to amend her pleading.
" 'There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding.' " (Berman, supra, 56 Cal.App.4th at p. 945.) "While a plaintiff even on appeal can most certainly make a showing that an amendment to the complaint will change its legal effect [citation], it is the plaintiff—not the court—who has the burden of showing that an amendment will have such an effect. . . . 'It is not up to the judge to figure out how the complaint can be amended to state a cause of action. Rather, the burden is on the plaintiff to show in what manner he or she can amend the complaint, and how that amendment will change the legal effect of the pleading.' [Citation.] . . . 'While such a showing can be made for the first time to the reviewing court [citation], it must be made.' " (Medina v. Safe-Guard Products, Internat., Inc. (2008) 164 Cal.App.4th 105, 113, fn. 8.)
Plaintiff has not demonstrated an ability to amend to state a proper cause of action. Her opening brief asserts that, if the regulations cited are inapplicable or insufficient, and if there are other regulations that do apply and are sufficient, then plaintiff should be granted leave to amend to plead those regulations. She has not identified any applicable, specific regulation she wishes to allege in her pleading by amendment. Rather, she argues that defendant has not identified any applicable regulations or proven PDC complied with them.
It is a plaintiff's responsibility to formulate the legal basis for her claim prior to litigation, and to refine it, if necessary, during litigation. If a statutory or regulatory basis is needed, it is plaintiff's responsibility to conduct the legal research necessary to discover the applicable statutes or regulations. Plaintiff cites no authority for her assumption that, if her claim, as alleged, is legally insufficient, defendant is required to make plaintiff's case for her. " 'The pleadings delimit the issues to be considered on a motion for summary judgment.' " (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1253.) In its motion for summary judgment, a defendant is only required to address the claims alleged in the complaint, not new, unpleaded issues raised by the plaintiff in opposition. (Ibid.)
Plaintiff concludes the section of her opening brief seeking leave to amend with a series of questions: "Is there any such regulation? If the regulations alleged in [plaintiff]'s first amended complaint are inapplicable or insufficient, are there any regulations which define minimum standards for [PDC]'s equipment, personnel, or facilities? If so, what are they?" In her reply brief, plaintiff states that, if there are regulations that prescribe minimum standards for PDC's equipment, personnel, and facilities, she "confesses she is unaware of them."
"[T]he burden of showing the ability to amend is on the plaintiff." (Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059, 1069.) Plaintiff has not met that burden. She has not identified any regulation that she could add to her pleading to cure the defects demonstrated in defendant's motion for summary judgment. She has not cited the regulation she asserted as the basis for her request for leave to amend in the trial court (Cal. Code Regs., tit. 22, § 70217, subd. (a)(13)). Even if she attempted to base her request for leave to amend on that regulation, she has not shown that she could state a valid cause of action. She has not asserted she could truthfully and factually allege a failure to comply with that regulation, or allege facts showing that any such alleged failure was a proximate cause of the decedent's death and plaintiff's injury. Because plaintiff has not demonstrated an ability to amend to avoid the shortcomings of her first amended complaint, her request for leave to amend is denied.
DISPOSITION
The judgment is affirmed. Defendant is entitled to its costs on appeal.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
FRANSON, J.