GARCIA v. W&W COMMUNITY DEVELOPMENT, INC.,





















Filed 6/18/10;
pub. order 7/16/10
(see end of opn.)

















IN THE COURT OF APPEAL OF THE STATE OF >CALIFORNIA >



FOURTH APPELLATE DISTRICT



DIVISION TWO






>

CESAR GARCIA et al., Plaintiffs and Appellants, v. W&W COMMUNITY DEVELOPMENT, INC., Defendant and Respondent.

E049099 (Super.Ct.No. RIC475189) OPINION

APPEAL from the Superior
Court of Riverside
County. Michael B. Donner,
Judge. Affirmed.

Henrichs Law Firm, John Henrichs;
Law Office of Luis A. Carrillo and Luis A. Carrillo for Plaintiffs and
Appellants.

Cihigoyenetche, Grossberg &
Clouse, Katharine L. Spaniac and Anthony C. Ferguson for Defendant and Respondent.

This is an appeal by Cesar Garcia,
plaintiff and appellant (hereafter plaintiff), from the summary judgment
entered against him, both as an individual and as the representative of the
estate of his daughter, Alexis Garcia, and in favor of defendant and respondent
W&W Community Development, Inc., doing business as Children's Plus Foster
Agency (hereafter defendant), on plaintiff's complaint seeking damages based on
negligence and wrongful death. In the
operative first amended complaint, plaintiff alleged that his two-year-old
daughter Alexis drowned on August 16,
2006, when her foster mother, Irma Henry, left the child unattended
for up to five minutes in a bathtub half filled with water. According to the complaint, defendant, a
state licensed foster family agency, had placed Alexis and her four-year-old
brother in the licensed foster home of Irma Henry and her husband Walter after
the County of Riverside
declared the children dependents of the court and removed them from the custody
of their mother.

Defendant moved for summary judgment, or in the alternative
summary adjudication of facts, on the ground that for various reasons it was
not liable to plaintiff for the acts of the foster parents. The trial
court agreed with one of defendant's arguments--that defendant performs a
quasi-governmental function and therefore is immune from liability--and entered
summary judgment in defendant's favor and dismissed the complaint as to it.

Plaintiff contends in this appeal
that defendant is not immune from liability and that he presented evidence that
creates a triable issue of material fact with respect to that issue. We agree with plaintiff that defendant is not
immune from liability. However, we
nevertheless conclude that plaintiff's evidence does not raise a triable issue
of material fact. Therefore, we will
affirm.

DISCUSSION

1.

SUMMARY JUDGMENT STANDARD OF REVIEW

On appeal, we review de novo an order granting
summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860 ( >Aguilar).) The trial court must grant a summary judgment
motion when the evidence shows that there is no triable issue of material fact
and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); >Aguilar, at p. 843.) In making this determination, courts view the
evidence, including all reasonable inferences supported by that evidence, in
the light most favorable to the nonmoving party. (Code Civ. Proc., § 437c, subd. (c); >Aguilar, at p. 843.) A defendant moving for summary judgment has
the burden of producing evidence showing that one or more elements of the
plaintiff's cause of action cannot be established, or that there is a complete
defense to that cause of action. (Code
Civ. Proc., § 437c, subd. (o)(2); Aguilar,
at pp. 849, 850-851, 854-855.) The
burden then shifts to the plaintiff to produce specific facts showing a triable
issue as to the cause of action or the defense.
(Code Civ. Proc., § 437c, subd. (p)(2); Aguilar, at pp. 849, 850-851.)
Despite the shifting burdens of production, the defendant, as the moving
party, always bears the ultimate burden of persuasion as to whether summary
judgment is warranted. ( >Aguilar, at p. 850.)

In reviewing the propriety of an order granting summary judgment, we
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