Judge: Anne Hwang, Case: 19STCV20022, Date: 2023-08-16 Tentative Ruling

Case Number: 19STCV20022    Hearing Date: November 16, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.      Notice of Motion and Motion for Summary Adjudication; Declaration; Memorandum of Points and Authorities

2.      Separate Statement in Support of Motion for Summary Adjudication

OPPOSITION PAPERS

1.      Defendants’ Opposition to Plaintiff’s Motion for Summary Adjudication; Declaration of Connie L. Benson

2.      Defendants’ Separate Statement in Opposition

REPLY PAPERS

1.      Reply to Opposition to Motion

BACKGROUND

On June 10, 2019, Plaintiff Hiram Ash, in pro per (Plaintiff), filed a complaint against Defendants Coach USA, Inc. dba Megabus West LLC and Megabus, and Does 1 to 50 for negligence, negligent infliction of emotional distress, and breach of contract and warranty. Plaintiff alleges that on June 12, 2017, he was traveling on a bus owned and operated by Defendants from San Francisco to Los Angeles. At a rest stop during the journey, Plaintiff alleges a bus driver assured him he was entering the correct bus, which was incorrect. After discovering the mistake, Plaintiff alleges the driver then ejected him from the bus on the side of freeway. Plaintiff alleges that he walked back to the rest stop and that the bus driver from his correct bus tried to leave without him. (Complaint, 5.)

On August 13, 2021, Defendants Megabus West, LLC, Coach USA, Inc. dba Megabus West LLC, and Megabus Coach USA Administration, Inc. (Defendants) filed an answer denying the allegations and asserting the following six affirmative defenses: (1) Contribution and Comparative Fault; (2) Negligence of Independent Third Parties; (3) Non-economic damages limited by proportion of fault (Civil Code §§ 1431.1–1431.5); (4) Laches; (5) Fails to State Facts to Justify Punitive Damages; and (6) Fails to state a cause of action.

Plaintiff now moves for summary adjudication on each affirmative defense and the issue of Defendants’ duty.

LEGAL STANDARD

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Id.) The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

DISCUSSION

As an initial matter, Defendants note that Plaintiff served this motion electronically, 75 days before the hearing date. Defendants argue that because it was served electronically, it should have been served 77 days earlier; therefore, they argue the motion should be denied procedurally. (See Code Civ. Proc. § 437c(a)(2).)

The Notice of Motion and supporting papers must be served at least 75 days before the time appointed for hearing. (Code Civ. Proc. § 437c(a)(2).) While Code of Civil Procedure section 437c(a)(2) does not specifically address electronic service, section 1010.6(a)(3)(B) provides that “any period of notice . . . shall be extended after service by electronic means by two court days.” (Code Civ. Proc. § 1010.6(a)(3)(B); see Cole v. Superior Court (2022) 87 Cal.App.5th 84, 87–88.)  

The hearing for summary adjudication is set for November 16, 2023. Seventy-five days earlier was September 2, 2023. Two court days prior was August 31, 2023. According to Plaintiff’s proof of service, he served his motion for summary adjudication by email on August 30, 2023. The supported signature on the proof of service is a typed name: “/s/ Robert Guevara.”   An electronic document signed under penalty of perjury, by a person other than the filer, must contain a signature that is “unique to the declarant, capable of verification, under the sole control of the declarant, and linked to data in such a manner that if the data are changed, the electronic signature is invalidated.” (Cal. Rules of Court, rule 2.257(b)(1); Code Civ. Proc. § 1010.6(e)(2)(B)(ii).) Defendants assert the motion was actually served by email on September 2, 2023. (Benson Decl. ¶ 3, Exh. A.) Defendants however, do not discuss whether the purported electronic signature on the proof of service is a proper signature under rule 2.257(b)(1). “The filing of a proof of service creates a rebuttable presumption that the service was proper.” (Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795.) Therefore, because Plaintiff’s proof of service shows that the motion was served on August 30, 2023, the Court will hear Plaintiff’s motion.

Contribution and Comparative Fault/ Negligence of Independent Third Parties

The first affirmative defense states: “the accident and resulting injuries and damages, if any alleged by the Complaint were proximately caused and contributed in some degree, by the negligence and carelessness of the Plaintiff, in that he so negligently failed to exercise ordinary care and caution for his own safety, and as to cause said action.”

The elements of comparative fault and contributory negligence under California law are: (1) relative responsibility of various parties for an injury to a claimant (e.g., negligence, or strict liability); and (2) equitable apportionment or allocation of loss by requiring parties to pay a share of the claimant’s judgment in proportion to their comparative responsibilities. (See Knight v. Jewett (1992) 3 Cal.4th 296, 314; see also Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 827.)

The second affirmative defense states: “Plaintiff is barred from any recovery herein as to these answering Defendants and that any damages proven to have been sustained by the Plaintiff herein, would be the direct and proximate result of the independent negligence and unlawful conduct of independent third parties, whether named or not named, or their agents, and not any act or omission on the part of these answering Defendants.”

A third-party negligence affirmative defense necessitates that the defendant establishes plaintiff’s injuries and damages were proximately caused and contributed to by the negligence of third parties other than the defendant. (See, e.g., CACI 432.)

Regarding the first and second affirmative defenses, summary adjudication is denied. As an initial matter, Plaintiff’s separate statement does not set forth undisputed material facts to negate these affirmative defenses, other than to argue that defendant is a “public common carrier [and] is held under strict liability and duty of care.” Plaintiff’s evidence consists of his own statements regarding the incident set forth in his declaration, motions and discovery responses, as well as an email correspondence with a Megabus Customer Service Specialist and reservation summary. (Pl. Exh. E.) In opposition, Defendants dispute Plaintiff’s “undisputed facts,” and argue that “Defendants have no knowledge (aside from Plaintiff’s own claims), that the alleged incident actually occurred. If Plaintiff disembarked from a bus, it would have been his responsibility to get back on that same bus to resume his travels.” (DUMF, First Aff. Def.)

Accordingly, even excusing Plaintiff’s failure to set forth undisputed material facts in the separate statement,[1] and considering all of the facts set forth in Plaintiff’s declaration and attachments, the Court finds that Plaintiff has not produced sufficient evidence that he was not negligent by boarding the incorrect bus. In addition, triable issues of fact remain regarding whether Plaintiff was told by a third party to board the bus, in light of Defendants’ denial that the incident ever happened. Accordingly, triable issues of fact remain regarding the first two affirmative defenses. (See, e.g., See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900 [“The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense. [Citations omitted.] If the plaintiff does not make this showing, ‘it is unnecessary to examine the [defendant’s] opposing evidence and the motion must be denied.’”].)

The Court further rejects Plaintiff’s argument that Defendants’ common carrier status is dispositive. “Common carrier status does not trigger strict liability, which imposes liability for injury regardless of the care exercised by a defendant. Nor does the common carrier standard implicate the doctrine of res ipsa loquitur, which allows negligence to be inferred from the mere fact of an injury because such an injury ordinarily would not occur without negligence. [Citation omitted.] So even under the heightened common carrier standard, [plaintiff] must show that [defendant] did, or failed to do, something to cause his injury. [Citation omitted.] The controlling question is whether the record contains evidence from which a reasonable trier of fact could determine that [plaintiff’s] injury occurred because [defendant] failed to act with the vigilance of a very cautious person.” (Sharufa v. Festival Fun Parks, LLC (2020) 49 Cal.App.5th 493, 500-01.) Here, triable issues of fact remain and the Court denies summary adjudication of the first two affirmative defenses.

Non-economic Damages Limited by Proportion of Fault

Plaintiff argues that Civil Code sections 1431.1–1431.5 cannot be applied to actions against common carriers. (Motion at p. 10.)

Section 1431.2 provides in relevant part: “In any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each defendant for non-economic damages shall be several only and shall not be joint. Each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant's percentage of fault, and a separate judgment shall be rendered against that defendant for that amount.”

Here, Plaintiff does not cite authority that establishes that common carriers are excluded from section 1431.2. As a result, summary adjudication of this affirmative defense is denied.  

Laches

“The basic elements of laches are: (1) an omission to assert a right; (2) a delay in the assertion of the right for some appreciable period; and (3) circumstances which would cause prejudice to an adverse party if assertion of the right is permitted.”  (Stafford v. Ballinger (1962) 199 Cal.App.2d 289, 296.) 

“There is no artificial or hard-and-fast rule either as to the lapse of time or the circumstances which will justify the application of the doctrine of laches. The question must be determined by a consideration of all the facts and circumstances of the particular case. Laches is a question of fact, on the evidence, and each case becomes largely a law unto itself. In other words, the matter is one which reposes in the sound discretion of the chancellor.”  (Merry v. Garibaldi (1941) 48 Cal.App.2d 397, 401.)

Here, Plaintiff’s evidence shows that he complained about the purported incident on June 13, 2017 by emailing Megabus Customer Service. (Pl. Exh. E.) This is purportedly the next day after the incident occurred. The Complaint was filed on June 10, 2019. Plaintiff further asserts that the “lawsuit was timely filed, and any delays were the result of Covid-19 and court closures.” (UMF, Fourth Affirmative Defense.) However, Plaintiff has not set forth evidence to establish there is no dispute of material fact that Defendants are not prejudiced by the delay or acquiescence in the act. As a result, summary adjudication of this affirmative defense is denied.

Punitive Damages/ Failure to State a Claim

Defendants’ fifth and sixth affirmative defenses state that the complaint fails to state facts to justify a claim for punitive damages or for a cause of action. Summary adjudication can only dispense of a claim for punitive damages. (See Code Civ. Proc. § 437c(f)(1).) Here, because Plaintiff is not arguing that his claim for punitive damages is without merit, the issue cannot be adjudicated in this motion.

Defendants’ sixth affirmative defense is not considered an affirmative defense since it does not allege “new matter”. (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 383-84 [defenses that are not put in issue by a general denial are considered “new matter” and properly considered affirmative defenses].)  Since a general denial is not an affirmative defense, there is no basis for addressing it on summary adjudication.

Duty of Care ­– Negligence

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) Civil Code section 2100 provides, “A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.”  “Every one who offers to the public to carry persons, property, or messages … is a common carrier of whatever he thus offers to carry.”  (Civ. Code § 2168.)   

The duty imposed by Section 2100 applies to public carriers as well as private carriers.  (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785.)  Common carriers of persons are subject to a heightened duty of care, and “[w]hile these carriers are not insurers of their passengers' safety, [t]his standard of care requires common carriers to do all that human care, vigilance, and foresight reasonably can do under the circumstances.”  (Huang v. The Bicycle Casino (2016) 4 Cal.App.5th 329, 338 [internal quotations omitted].)  Further, the degree of care which common carriers must exercise “is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and the practical operation of the business of the carrier.”  (Lopez, 40 Cal.3d at 785.) 

“Whether a party is a common carrier for reward may be decided as a matter of law when the material facts are not in dispute. [Citation omitted.] When the material facts are disputed, it is a question of fact for the jury. [Citation omitted.] Factors bearing on a party’s common carrier status include: (1) whether the party maintained an established place of business for the purpose of transporting passengers; (2) whether the party engaged in transportation as a regular business and not as a casual or occasional undertaking; (3) whether the party advertised its transportation services to the general public; and (4) whether the party charged standard rates for its service.” (Huang, supra, 4 Cal.App.5th at 339.)  

Plaintiff has not set forth sufficient facts to meet his burden of production. Plaintiff’s separate statement of undisputed facts alleges that the evidence shows that “plaintiff as a fare paying passenger on Megabus and that plaintiff was discharged randomly from the bus.” (UMF, Duty of Care Issue.) Plaintiff has not set forth sufficient facts to establish what duty of care is owed, and whether Defendants breached their duty of care remains a question of fact.

CONCLUSION AND ORDER

Based on the foregoing, Plaintiff Hiram Ash’s Motion for Summary Adjudication is DENIED.

            Plaintiff is ordered to give notice of this ruling and file a proof of service of such.