Robertson v. United States Department of Agriculture Forest Service et al

Filing 32

Notice of Tentative Ruling on Defendant's Motion to Dismiss, and Motion for Summary Judgment. Counsel are advised that the Court's rulings are tentative and the Court will entertain additional arguments at the hearing on May 15, 2015 at 1:30 p.m. in Courtroom 2D. Signed by Judge Gonzalo P. Curiel on 5/14/15.(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JEFFREY D. ROBERTSON, an
individual,
vs.

Plaintiff,

CASE NO. 13cv2425-GPC(RBB)
NOTICE OF TENTATIVE RULING
ON DEFENDANT’S MOTION TO
DISMISS, AND MOTION FOR
SUMMARY JUDGMENT

UNITED STATES OF AMERICA,
Defendant.

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Before the Court is Defendant’s motion to dismiss and motion for summary

17 judgment. (Dkt. No. 27.) A hearing is set for May 15, 2015. After a review of the
18 briefs, supporting documentation and the applicable law, the Court issues the following
19 tentative rulings in advance of Friday’s hearing.
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Plaintiff filed an amended complaint alleging negligence against Defendant

21 under the Federal Tort Claims Act (“FTCA”). Defendant moves to dismiss the
22 amended complaint for lack of subject matter jurisdiction pursuant to Federal Rule of
23 Civil Procedure 12(b)(1) arguing that the failure to maintain the wire fence along Bear
24 Valley Road (“BVR”) located in the Cleveland National Forest falls under the
25 discretionary function exception to the FTCA. Defendant also moves for summary
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[13cv2425-GPC(RBB)]

1 judgment arguing that California’s recreational use immunity bars Plaintiff’s claims.1
2 Plaintiff opposes.
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Discussion
The Court tentatively DENIES Defendant’s motion to dismiss based on the

5 discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a).
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While Defendant has demonstrated the first factor, that Defendant’s decision with

7 respect to the maintenance of BVR involves an “element of judgment or choice,” it has
8 failed to demonstrate the second factor, that the government’s decision was based on
9 policy decisions grounded in economic, social or political policy.

Since the

10 government did not consider the wire fence on BVR as part of its maintenance
11 decision, it cannot be said to have engaged in any policy considerations concerning the
12 wire fence. Therefore, maintenance of the wire fence on BVR falls outside the purview
13 of the discretionary function exception.
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The Court tentatively GRANTS Defendant’s motion for summary judgment

15 based on California’s recreational use immunity pursuant to California Civil Code
16 section 846. Plaintiff’s allegation, without evidentiary support, that the forestry
17 workers somehow clipped a section of wire fencing at or near the scene of Plaintiff’s
18 accident and somehow caused the rolled wire fence to end up in the middle of BVR is
19 speculation and is not “specific,” “substantial” or “significantly probative.” See
20 Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1029 (9th Cir. 2006) (while
21 circumstantial evidence may be used to create a genuine issue of material fact, the
22 evidence must be “specific” and “substantial”); Anderson, 477 U.S. at 249-50 (a
23 motion for summary judgment may be granted if the evidence is “merely colorable” or
24 “is not significantly probative.”).
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In addition, Plaintiff has not demonstrated a genuine issue of fact that the

26 government had actual or constructive knowledge of the dangers of the wire fence, had
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Defendant also moves for summary judgment arguing that Plaintiff has failed
28 to demonstrate causation. Since the Court tentatively rules that Defendant’s motion for
summary judgment should be granted, it will not address the causation argument.
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[13cv2425-GPC(RBB)]

1 actual or constructive knowledge that injury is probable, and consciously failed to act
2 to avoid the peril. See Termini v. United States, 963 F.2d 1264, 1267 (9th Cir. 1992)
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Counsel are advised that the Court’s rulings are tentative and the Court will

4 entertain additional arguments at the hearing on May 15, 2015 at 1:30 p.m. in
5 Courtroom 2D.
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IT IS SO ORDERED.

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8 DATED: May 14, 2015
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HON. GONZALO P. CURIEL
United States District Judge

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[13cv2425-GPC(RBB)]