MORRISON C. ENGLAND, Jr., District Judge.
On July 20, 2011, Plaintiff Peggy Boynton ("Plaintiff") filed the operative First Amended Complaint ("FAC") against Defendant United States of America ("Defendant" or "government") seeking redress for the damage caused to her mobile home as a result of Defendant's purported failure to maintain the property on which the mobile home is situated. ECF No. 14. On November 30, 2011, the government filed an Answer to Plaintiff's FAC and a Counterclaim in Ejectment, seeking to recover possession of the property on which Plaintiff's mobile home sits and damages for wrongful retention of that property.
Plaintiff is a retired employee of the Board of Prisons ("BOP") and is the owner of a mobile home situated on Defendant's property at the Federal Correctional Institution, Dublin, California ("FCI, Dublin"). Plaintiff lived in her personally owned mobile home in the staff housing area of FCI, Dublin while she was employed with the BOP from 1995 until her retirement in 2010. Plaintiff's privilege to occupy the mobile home site terminated upon her retirement from the BOP in 2010.
In July 2007, Plaintiff complained to the BOP that the storm drain above her home was not working properly and had caused her yard to flood. The BOP installed a new drainage system in June 2008, and Plaintiff admitted in a September 2010 letter to the former BOP Director that the new system had fixed the flooding issues.
After an investigation, the BOP denied her claim, stating that the only fire hydrant that could possibly have caused the alleged damage belonged to an adjacent U.S. Army Reserve facility, not to the BOP. The BOP's investigation also revealed that sometime in 2007, Plaintiff herself constructed an underground irrigation system along the exterior wall of her mobile home, creating a soil barrier around her home. This action had the effect of raising the ground level so that the soil made contact with the wood siding of her home, potentially causing saturation and preventing ventilation. Investigators concluded the damage Plaintiff identified was the result of years of her own failure to maintain the mobile home's exterior. Under BOP Program Statement 4220.02 and Institution Supplement DUB 4220.02(H), an employee like Plaintiff, as a condition of living in staff housing, is solely responsible for the maintenance of his or her mobile home.
In 2010, Plaintiff retired from the BOP, thus terminating the privilege of living in staff housing at FCI, Dublin. On September 16, 2010, she was issued a formal notice of termination of occupancy, giving her 90 days to either sell her mobile home or remove it from FCI, Dublin grounds. Having failed to sell or remove her home within this time period, the BOP sent Plaintiff another notice on January 12, 2011, giving her until March 12, 2011, to do so. On April 5, 2011, the BOP granted Plaintiff a 90-day extension to July 5, 2011, to remove or sell her home. The April 5, 2011 extension letter provided that if Plaintiff failed to remove or sell by that date, the BOP would initiate steps to have the mobile home transported off FCI, Dublin grounds at Plaintiff's expense. To date, Plaintiff has not sold or removed her mobile home from FCI, Dublin grounds.
This case has a long and drawn out procedural history, the most relevant of which the Court summarizes here. Plaintiff filed the operative FAC on July 20, 2011, alleging that BOP's negligence resulted in damage to her mobile home. Specifically, Plaintiff claims that an open fire hydrant washed away dirt from around her home, destroying her yard, and weakening the soil and stability of her mobile home. FAC, ECF No. 14, at ¶¶ 7-8. She additionally claims that her storm drain was clogged, which separately caused flooding of her yard.
On November 30, 2011, the government filed its Answer along with a Counterclaim in Ejectment to Recover Possession of Real Property and Damages for Wrongful Detention. Gov't Counterclaim, ECF No. 16. The government contends that it is the owner of the property upon which Plaintiff's mobile home sits, and therefore seeks restitution of the premises, damages for Plaintiff's unlawful possession in the amount of $222.50 bi-weekly from July 5, 2011 until possession is restored, damages for the cost of repair to the property, and damages for the cost of recovering possession, including the cost of transporting the mobile home off of FCI, Dublin grounds.
Plaintiff failed to respond to the government's counterclaim, and default was entered on February 7, 2012. ECF No. 19.
In July 2014, months after an unsuccessful VDRP session (
The Court's finding of prejudice was based largely on the fact that the government had filed a motion for default judgment on March 24, 2015 (ECF No. 73), and Plaintiff's counsel sought withdrawal just two days before an opposition to the default was due. ECF No. 80, at 5. Despite Plaintiff's failure to oppose the motion for default judgment, the Court denied the motion, reasoning that Plaintiff herself had not been absent in the litigation, Plaintiff's counsel indicated that he would represent his client's interests going forward, and the Court generally favors resolution of cases on the merits.
Then on October 4, 2016, the government filed a motion to dismiss for lack of prosecution based primarily on Plaintiff's failure to attend her court-ordered deposition— which had been ordered after many months of attempting to set Plaintiff's deposition without the Court's intervention. The government further cited Plaintiff's failure to respond to the government's First Set of Requests for Admission,
The deadline for designation of experts and exchange of reports was February 6, 2017, per the parties' Court-approved stipulation. ECF No. 115. To date, Plaintiff has failed to designate any experts.
The Federal Rules of Civil Procedure provide for summary judgment when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a);
Rule 56 also allows a court to grant summary judgment on part of a claim or defense, known as partial summary judgment.
In a summary judgment motion, the moving party always bears the initial responsibility of informing the court of the basis for the motion and identifying the portions in the record "which it believes demonstrate the absence of a genuine issue of material fact."
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist.
In attempting to establish the existence or non-existence of a genuine factual dispute, a party must support its assertion by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits[,] or declarations . . . or other materials; or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1). More specifically, in attempting to establish the existence of a factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists.
In resolving a summary judgment motion, the evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party.
Defendant's motion for summary judgment is unopposed. Even so, a district court may not grant a motion for summary judgment solely because the opposing party has failed to file an opposition.
As set forth in the government's motion, Plaintiff has the burden of proving each element of her negligence claim by a preponderance of the evidence. The elements of a negligence claim are (1) duty, (2) breach of that duty, (3) causation, and (4) damages. Among its many arguments in support of dismissal or summary judgment, the government argues that because Plaintiff has failed to designate experts, she cannot establish (1) that there is an interior mold infestation in her mobile home, and (2) that the infestation was caused by the government's negligence. Gov't Mot. at 16-17. Absent a sufficient showing of causation, Plaintiff cannot establish a
Indeed, absent any evidence—expert testimony or otherwise—that the government had a duty to maintain the property, that the government breached that duty, and that the government's breach caused the alleged damage to Plaintiff's home, summary judgment of Plaintiff's negligence claim is appropriate.
Moreover, not only has the government satisfied its burden as the moving party of pointing to the absence of a genuine issue of material fact, the government has gone one step further and offered evidence that it was Plaintiff's own actions or inactions that caused the damage to her mobile home. For example, the evidence before the Court indicates that Plaintiff herself "constructed an underground irrigation system directly abutting the base of her mobile home on all sides." SUF ¶ 19. The construction of that system had the effect of raising the ground around Plaintiff's home such that her home ended up "submerged in a bowl" of soil, which prevented ventilation under the home while the system likely added water to the surrounding area.
With respect to the government's counterclaim in ejectment to recover possession and damages for unlawful possession, the government's motion is GRANTED.
The elements of an action for ejection under California law are (1) ownership by plaintiff disclosing a right to possession and (2) a withholding thereof from the plaintiff.
As for the government's claimed damages, the Court finds that the evidence supports the requested award. Specifically, the government seeks restitution of the property; damages for lost rental income in the amount of $222.50 bi-weekly from July 5, 2011 to the date on which possession is recovered; and the cost of repair or restoration of the property to its original condition, including the cost of transporting the mobile home off the property. The undisputed facts establish that Plaintiff was given until July 5, 2011 to remove or sell her mobile home. SUF ¶ 15. It is also undisputed that although Plaintiff personally owned her mobile home, she was required to pay a bi-weekly fee for use of the lot; upon her retirement in 2010, Plaintiff was paying the reasonable rent of $222.50 bi-weekly. SUF ¶ 4; LeMaster Decl. ¶¶ 4-5. Lastly, it is undisputed that preparation of the mobile home for transport and transportation off the FCI, Dublin site is estimated to be $5,500.00. SUF ¶ 35. Based on these established facts, the Court finds the requested award of $38,875.00 to be reasonable—$5,500 for the cost of removal of the mobile home, plus $33,375 in lost rental from July 5, 2011 to April 4, 2017. The Court further awards additional damages in the amount of $222.50 bi-weekly from April 4, 2017 to the date of electronic filing of this Order. To the extent the government seeks additional damages for the cost of repair or restoration of the property beyond the cost of mobile home removal, however, such a request is not supported by the evidence at this time. The Court therefore retains jurisdiction solely to address future damages requests or any disputes regarding damages.
For the reasons set forth above, the Court GRANTS Defendant's Motion for Summary Judgment of Plaintiff's claim, and GRANTS Defendant's Motion for Summary Judgment of its Counterclaim. ECF No. 122. The Court DENIES as moot Defendant's Motion to Dismiss Plaintiff's claim, ECF No. 122, and further DENIES as moot Defendant's previous Motion to Dismiss for lack of prosecution, ECF No. 107. The Court hereby enters judgment in favor of the government on both Plaintiff's claim and Defendant's counterclaim, orders restitution of the premises in question to the government, and assesses damages against Plaintiff Boynton in the amount of $38,875, plus additional damages in the amount of $222.50 bi-weekly from April 4, 2017 to the date of electronic filing of this order.
IT IS SO ORDERED.