PALOS v. UNITED STATES (2025)

ORDER GRANTING GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT [DKT. 69]

RULING

Before the court is Defendant United States of America's (“Defendant” or the “government”) Motion for Summary Judgment (the “Motion”). Dkt. 69; Dkt. 69-1 (“Mot. Br.”).¹ Plaintiffs Maria Catalina Hernandez Palos and Veronica Paloz (together, “Plaintiffs”) oppose the Motion. Dkt. 76 (“Opp'n”). On February 13, 2025, the court found the Motion appropriate for resolution without oral argument and ordered that the Motion be taken under submission as of the government's filing of its reply or February 21, 2025. Dkt. 81; see Fed. R. Civ. P. 78(b); Local Rule 7-15. The government filed its reply brief on February 21, 2025. Dkt. 82.

For the reasons stated herein, the court GRANTS Defendant's Motion and ENTERS summary judgment in Defendant's favor on Plaintiffs’ claim.

BACKGROUND

On November 12, 2020, a Civil Air Patrol (“CAP”) pilot was operating a Cessna 182T airplane owned and operated by the government. Dkt. 69-2 (Def. Statements of Uncontroverted Facts, “Def. SUF”) ¶¶ 1–2; Dkt. 76-3 (Pl. Resp. to Def. SUF, “Pl. Resp. SUF”) ¶¶ 1–2. On the pilot's final approach before landing, the pilot experienced an engine failure and crashed into a road in a residential neighborhood, about 175 feet from the runway threshold. Pl. Resp. SUF ¶ 3. Plaintiffs allege the airplane crashed into the ground immediately outside Plaintiffs’ residence, and that “[t]he fire and debris from the crash caused significant damage to Plaintiffs’ home․” Dkt. 30 (“FAC”) ¶ 8. As a result, Plaintiffs allege they sustained property damage, bodily injuries, and emotional distress. FAC ¶ 11.

Plaintiffs filed the operative First Amended Complaint (“FAC”) on December 4, 2023, asserting claims for negligence against the government under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 2671–2680, and against former Defendant General Aviation Co. (“General Aviation”) under California state common law. FAC ¶¶ 1–2, 21–32. Plaintiffs allege the government negligently maintained, operated, and piloted the airplane. Id. ¶¶ 9–10, 22–27. Plaintiffs also allege General Aviation “failed to properly secure the throttle control hardware during recent maintenance on the Cessna 182T, which resulted in its disconnection and a subsequent loss of engine power on approach for landing[,]” id. ¶ 23, and that the government failed to exercise ordinary and reasonable care in supervising General Aviation, id. ¶ 26.

On July 17, 2024, the court granted General Aviation's Motion to Dismiss (Dkt. 46) and dismissed Plaintiff's claim against General Aviation as barred by the applicable statute of limitations. Dkt. 64.

DISCUSSION

I. Legal Standard

Summary judgment is appropriate where “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). “The substantive law determines which facts are material; only disputes over facts that might affect the outcome of the suit under the governing law properly preclude the entry of summary judgment.” Nat'l Ass'n of Optometrists & Opticians v. Harris, 682 F.3d 1144, 1147 (9th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A dispute about a material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. 2505.

“A moving party without the ultimate burden of persuasion at trial ․ has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). “[T]o carry its burden of production, the moving party must produce either evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Id. “[T]o carry its ultimate burden of persuasion on the motion, the moving party must persuade the court that there is no genuine issue of material fact.” Id. “If ․ a moving party carries its burden of production, the nonmoving party must produce evidence to support its claim or defense.” Id. at 1103.

“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ ” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Summary judgment must be granted “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

“If the nonmoving party produces direct evidence of a material fact, the court may not assess the credibility of this evidence nor weigh against it any conflicting evidence presented by the moving party.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). Inferences may be drawn from underlying facts that are either not in dispute or that may be resolved at trial in favor of the nonmoving party, but only if they are “rational” or “reasonable” and otherwise permissible under the governing substantive law. Id. The court must view all evidence and justifiable inferences “in the light most favorable to the nonmoving party.” Id. at 630–31. However, a party cannot defeat summary judgment based solely on the allegations or denials of the pleadings, conclusory statements, or unsupported conjecture. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003); see also FTC v. Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (“A conclusory, self-serving affidavit, lacking detailed facts and any supporting evidence, is insufficient to create a genuine issue of material fact.”).

II. Analysis

A. Exclusion of Expert Witness Testimony Under Fed. R. Civ. P. 37(c)(1)

Fed. R. Civ. P. (“Rule”) 26(a)(2)(A) and (B) mandate that “a party must disclose to the other parties the identity of any witness it may use at trial” and, “[u]nless stipulated or otherwise ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case․” That report must contain:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;

(ii) the facts or data considered by the witness in forming them;

(iii) any exhibits that will be used to summarize or support them;

(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;

(v) a list of all other cases in which, during the previous 4 years the witness testified as an expert at trial or by deposition; and

(vi) a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B)(i)–(vi).

“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1106 (9th Cir. 2001) (“Rule 37(c)(1) gives teeth to these requirements by forbidding the use at trial of any information required to be disclosed by Rule 26(a) that is not properly disclosed.”). Under Rule 37, the exclusion of experts who failed to provide a report is automatic and self-executing. Goodman v. Staples The Office Superstore, LLC, 644 F.3d 817, 827 (9th Cir. 2011) (“Rule 37(c)(1) is a ‘self-executing,’ ‘automatic’ sanction designed to provide a strong inducement for disclosure.”).

Here, the court's operative Scheduling Order established November 20, 2024, as the deadline for expert witness disclosures. Dkt. 52. The court previously warned the parties that failure to comply with its orders concerning expert witness discovery could result in the exclusion of an expert witness. Dkt. 19 at 4. Plaintiffs’ November 20, 2024 disclosure identified Michael Henderson (“Henderson”) as a “specially retained” “aviation expert,” who was expected to testify concerning “the cause of the subject incident, pilot capability, aircraft maintenance, ․ and other areas of expertise related to the aircraft operation and maintenance at issue in this incident,” among other subjects. Dkt. 69-3 at 34–35. Plaintiffs, however, failed to produce the requisite expert witness report and stated, instead, that “[t]here [were] no reports or writings at [that] time made by this expert in the course of ․ preparing his opinion.” Id. at 33–43.

Plaintiffs offer no explanation as to why they did not produce Henderson's written report by the expert witness disclosure deadline. See generally Opp'n.² The court, thus, finds the failure to disclose Henderson's expert report was not substantially justified or harmless. Goodman, 644 F.3d at 827; see also Merchant v. Corizon Health, Inc., 993 F.3d 733, 742 (9th Cir. 2021). Accordingly, the court excludes all expert opinions by Henderson pursuant to Rule 37(c)(1).³

B. Negligence

Plaintiffs’ sole claim against the government is for negligence in the operation, piloting, and maintenance of the aircraft involved in the accident. FAC ¶¶ 21–32. The government moves for summary judgment on the grounds that any negligent maintenance of the aircraft is protected under sovereign immunity and the independent contractor exception to the FTCA should apply. Mot. Br. at 2–3. As for the alleged negligent operation and piloting of the aircraft, the government argues it is a complex subject matter that requires expert witness testimony to establish the applicable standard of care. Mot. Br. at 25. Plaintiffs respond that a waiver of sovereign immunity applies, and no specialized expert testimony is required to judge the alleged negligent piloting and operation of the aircraft. Opp'n at 9. The court discusses each argument in turn.

The United States and its agencies have sovereign immunity from all lawsuits unless Congress expressly waives that immunity. Department of Army v. Blue Fox, Inc., 525 U.S. 255, 260, 119 S.Ct. 687, 142 L.Ed.2d 718 (1999). Absent such waiver, the court lacks subject matter jurisdiction. Morales v. United States, 895 F.3d 708, 713 (9th Cir. 2018). The FTCA “waives the sovereign immunity of the United States for certain torts committed by federal employees ‘under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’ ” Smith v. United States, 507 U.S. 197, 201, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993) (emphasis omitted) (quoting 28 U.S.C. § 1346(b)). The FTCA “expressly excludes any contractor with the United States.’ ” Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005) (quoting 28 U.S.C. § 2671). Under the “independent contractor” exception to the FTCA's waiver of governmental immunity, the government is not liable for the negligence of its contractors. See United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976).

The court applies federal law and common law agency principles to determine whether an individual is a federal employee or independent contractor. Autery, 424 F.3d at 957. To determine whether an individual is a government employee for waiver purposes, the Ninth Circuit applies an “actual control” standard, requiring “substantial supervision and control over the detailed physical performance and day-to-day operations of the contractor.” Vallier v. Jet Propulsion Lab., 120 F. Supp. 2d 887, 894–95 (C.D. Cal. 2000), aff'd, 23 F. App'x 803 (9th Cir. 2001) (citing Hines v. United States, 60 F.3d 1442, 1446–47 (9th Cir. 1995), Laurence v. Dep't of the Navy, 59 F.3d 112, 114 (9th Cir. 1995), and Letnes v. United States, 820 F.2d 1517, 1519 (9th Cir. 1987)). Contractual provisions directing detailed performance, standards designed to secure federal safety objectives, detailed regulations and inspections, and the ability to compel compliance with federal regulation generally do not abrogate the contractor exception or convert a contractor's personnel into federal employees. Autery, 424 F.3d at 956 (citations omitted).

Here, there is no genuine dispute CAP lacked actual control over General Aviation, thereby making the FTCA's waiver of sovereign immunity inapplicable. CAP contracted with General Aviation to perform aircraft maintenance, repairs, and inspections on CAP-owned aircraft, and the contract did not state that CAP had the authority to supervise or control those activities. Def. SUF ¶ 24 (citing Dkt. 69-4 at 5–21). Moreover, there is no dispute CAP did not de facto exercise any substantial supervision or control over General Aviation. Def. SUF ¶¶ 24–29; see also Dkt. 69-4 at 2–3. Plaintiffs concede they “do not dispute that CAP lacked onsite or day-to-day supervision of shop(s)” but maintain—solely based on Henderson's expert witness declaration (Dkt. 76-4)—that the government “retained ultimate control and supervision over maintenance of the airplane prior to crash.” Pl. Resp. SUF ¶¶ 5–7, 13–17, 24–26. Because Plaintiffs failed to produce Henderson's report containing his opinions in a timely manner and without explanation or justification, it is undisputed CAP did not exercise actual control over General Aviation.⁴

Furthermore, it is clear General Aviation was an independent contractor for purposes of the FTCA's independent contractor exception. As explained above, the court finds the government did not exercise day-to-day control over General Aviation. CAP did not provide General Aviation with a location to perform its work under the contract (SUF ¶14), tools or equipment necessary to install replacement parts (SUF at 15), or tools or equipment to install the engine or perform the inspection work on the accident airplane (SUF ¶¶ 15–16). The contract between CAP and General Aviation referred to General Aviation as a “CONTRACTOR.” SUF ¶ 11; see Vallier, 120 F. Supp. 2d at 957 (determining Caltech was an independent contractor in part because contracts at issue identified Caltech as a “contractor” and never referenced Caltech as a government agent). Plaintiffs lack evidence the government controlled General Aviation's work, that General Aviation and its employees qualified as federal employees, and that the government engaged in any conduct separate from General Aviation's negligence that constituted a breach of the standard of care. “[T]he United States may not be sued for the negligence of its independent contractor, and this [c]ourt lacks jurisdiction to hear [P]laintiffs’ tort claims” as a result. Vallier, 120 F. Supp. 2d at 910.

Accordingly, there is no waiver of sovereign immunity, and the court GRANTS summary judgment in the government's favor on this basis as to this claim.

As for Plaintiffs’ claim regarding the negligent operation and piloting of the aircraft, courts apply the substantive law of the place where the alleged negligent act or omission occurred under the FTCA. 28 U.S.C. §§ 1346(b), 2674. “To prevail in a negligence action [under California law], a plaintiff must show that the defendant owed a legal duty, the defendant breached that duty[,] and the breach proximately caused injury to the plaintiff.” J.L. v. Child.’s Inst., Inc., 177 Cal. App. 4th 388, 396, 99 Cal.Rptr.3d 5 (2009) (citing Wiener v. Southcoast Childcare Ctr., Inc., 32 Cal. 4th 1138, 1145, 12 Cal.Rptr.3d 615, 88 P.3d 517 (2004)).⁵ “Breach is the failure to meet the standard of care.” Coyle v. Historic Mission Inn Corp., 24 Cal. App. 5th 627, 643, 234 Cal.Rptr.3d 330 (2018).

Specialized education and FAA certification are necessary to become a pilot or aircraft mechanic. E.g., 14 C.F.R. §§ 61.1–61.169; 14 C.F.R. pt. 61, App'x A (certification requirements and practical test standards for pilots); 14 C.F.R. §§ 65.71–65.95 (certification requirements for aircraft mechanics and authorized inspectors). Pilots and mechanics are also required to comply with a large body of FAA regulations. See 14 C.F.R. §§ 91.1–91.1721 (FAA regulations establishing general operating and flight rules); 14 C.F.R. §§ 43.1–43.17; 14 C.F.R. pt. 43, App'x A–F (FAA regulations governing aircraft maintenance, preventive maintenance, rebuilding, alteration, and inspections).

California courts have required expert testimony to establish the standard of care in cases involving pilot qualifications. See Dixon v. City of Livermore, 127 Cal. App. 4th 32, 46, 25 Cal.Rptr.3d 50 (2005). Under the circumstances of this case, it would be extremely difficult, if not altogether impossible, to ascertain and apply the correct standard of care applicable to the CAP pilot's actions without expert witness testimony. Given Plaintiffs’ untimely production of Henderson's expert witness report, and Plaintiffs’ failure to submit any additional evidence to establish the correct standard of care regarding the government's alleged negligence, there is no evidence of the government's violation of the standard of care applicable to the operation and piloting of the aircraft at issue. See Webster v. Claremont Yoga, 26 Cal. App. 5th 284, 289–90, 236 Cal.Rptr.3d 802 (2018) (granting summary judgment when plaintiff failed to demonstrate expert testimony to establish standard of care); see also Merchant, 993 F.3d at 742 (granting summary judgment to defendants because of the absence of any genuine issue of material fact after exclusion of plaintiff's expert witnesses).⁶

The government's undisputed evidence, however, appears to establish General Aviation was negligent in maintaining the aircraft. SUF ¶¶ 31–41. The government's evidence establishes that Larry Vidal of General Aviation failed to install a safety mechanism during an annual inspection, which ultimately resulted in an unresponsive engine. SUF ¶¶ 12, 36-37. Regardless of whether Plaintiffs’ expert's testimony is admissible, the government is liable for negligent maintenance if it is responsible for General Aviation's work. However, as discussed supra, there was no waiver of sovereign immunity, and the independent contractor exception applies, meaning the government is not liable for General Aviation's negligent work. As such, the court lacks jurisdiction over the negligent maintenance claims. Plaintiffs lack evidence the government engaged in any conduct separate from General Aviation's negligence that constituted a breach of the standard of care.

Plaintiffs also assert the government “had nondelegable duties to ensure airworthiness and flight safety.” Opp'n at 5. Plaintiffs cite Hoffman v. City of Los Angeles, 137 Cal. App. 2d 295 (1955), to claim that aircraft owners and operators have a nondelegable duty to maintain an aircraft. Opp'n at 3, 7, 8. However, that case does not appear to exist. The government notes “[t]he Hoffman cite is incorrect and the United States was unable to find that case or holding.” Reply at 14. Plaintiffs also cite Morris v. County of Marin, 18 Cal. 3d 901, 136 Cal.Rptr. 251, 559 P.2d 606 (1977), in support of their nondelegable duty argument, but that case never mentions nondelegable duties. Opp'n at 3, 7. Plaintiffs further quote language in Morris, see Opp'n at 7 (“Public safety-related duties are nondelegable.”), and Autery v. United States, 424 F.3d 944, 956 (9th Cir. 2005), Opp'n at 9, which cannot be found in either decision.

Because Plaintiffs cannot prove that a federal government employee acted negligently in maintaining the aircraft, the United States has not waived sovereign immunity, and the court lacks subject matter jurisdiction. Accordingly, the court GRANTS summary judgment in the government's favor on this basis as to Plaintiffs’ claim.

CONCLUSION

For the aforementioned reasons, the court GRANTS the government's Motion for Summary Judgment and ENTERS summary judgment in the government's favor on Plaintiffs’ sole claim. The government's remaining evidentiary objections, Dkt. 82-3 ¶¶ 2–4, are OVERRULED as moot.

IT IS SO ORDERED.

FOOTNOTES

1.   The court cites documents by the page numbers added by the court's CM/ECF system, rather than any page numbers that appear within the documents natively.

2.   In connection with their opposition, Plaintiffs submitted a copy of an e-mail, dated January 26, 2025, Dkt. 76-5 at 5–18, which they describe as Henderson's expert report. Opp'n at 10. As Plaintiffs offer no explanation for why they did not disclose the expert witness report timely, the court SUSTAINS the government's objection to this evidence, Dkt. 82-3 at 2, pursuant to Rule 37(c)(1).

3.   In R & R Sails, Inc. v. Insurance Co. of Pennsylvania, 673 F.3d 1240, 1247 (9th Cir. 2012), the Ninth Circuit held that when a district court excludes case-dispositive evidence under Rule 37(c)(1), it must consider lesser sanctions as part of its “harmlessness inquiry.” However, in Merchant, the Ninth Circuit clarified that when a party fails to move the district court for a lesser sanction, it does not trigger R & R Sails’ requirement. 993 F.3d at 741 (“[T]o require district courts to consider lesser sanctions without a motion would collapse the rule's provision of automatic exclusion of undisclosed evidence ․ into an open-ended approach that is divorced from the text of the rule”) (cleaned up). Here, Plaintiffs never moved for lesser sanctions. Thus, without that trigger, the court applies Rule 37(c)(1)’s default exclusion sanction. See id. at 742.

4.   Even if Plaintiffs had produced Henderson's report in a timely manner, Plaintiffs’ November 20, 2024 disclosure identified Henderson as a “specially retained” “aviation expert,” who was expected to testify concerning “the cause of the subject incident, pilot capability, aircraft maintenance, ․ and other areas of expertise related to the aircraft operation and maintenance at issue in this incident,” among other subjects. Dkt. 69-3 at 34–35. There is no evidence Henderson was designated to opine on whether CAP exercised “actual control” over General Aviation, which raises a mixed question of law and fact, or whether he would have been qualified to render such an opinion. See Utne v. Home Depot U.S.A., Inc., No. 16-CV-01854-RS, 2022 WL 1443338, at *6 (N.D. Cal. May 6, 2022) (noting that whether an employee is subject to an employer's control is a mixed question of law and fact).

5.   General rules of negligence apply to actions involving airplane crashes. Beech Aircraft Corp. v. United States, 51 F.3d 834, 838 (9th Cir. 1995).

6.   Because the court grants Defendant's Motion on this ground, the court need not consider Defendant's alternative theories for summary judgment in its favor.

FERNANDO L. AENLLE-ROCHA, United States District Judge