Judge: Anne Hwang, Case: 22STCV26427, Date: 2023-12-15 Tentative Ruling

Case Number: 22STCV26427    Hearing Date: December 15, 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

BACKGROUND

On August 16, 2022, Plaintiff Antanas Jasiukonis (Plaintiff) filed a complaint against Defendants Star Bike Rentals, Alon Benshalom (Benshalom), and Does 1 to 25. On November 15, 2022, Plaintiff filed a first amended complaint (FAC) against the same parties, for negligence. Plaintiff alleges that on January 3, 2021, “at or near the 2600 block of Ocean Front Walk in Venice, California,” he was riding his bicycle on the beach bike path behind a motorized vehicle owned by Star Bike Rentals and operated by Benshalom or Does. Plaintiff alleges the motorized vehicle made a sudden left turn in front of Plaintiff, causing him to strike the vehicle and be ejected from his bicycle. (FAC, 4.)

Defendant Beachfront Bikes LLC (erroneously sued as Star Bike Rentals) now moves for judgment on the pleadings. Plaintiff opposes and Beachfront Bikes LLC (Defendant) replies.

LEGAL STANDARD

The standard for ruling on a motion for judgment on the pleadings is essentially the same as that applicable to a general demurrer, that is, under the state of the pleadings, together with matters that may be judicially noticed, it appears that a party is entitled to judgment as a matter of law.  (Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321-322, citing Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.)  Matters which are subject to mandatory judicial notice may be treated as part of the complaint and may be considered without notice to the parties. Matters which are subject to permissive judicial notice must be specified in the notice of motion, the supporting points and authorities, or as the court otherwise permits. (Id.) The motion may not be supported by extrinsic evidence. (Barker v. Hull (1987) 191 Cal.App.3d 221, 236.) 

When the moving party is a defendant, he must demonstrate either of the following exist:  

                                            i.The court has no jurisdiction of the subject of the cause of action alleged in the complaint.  

                                          ii.The complaint does not state facts sufficient to constitute a cause of action against that defendant. (Code Civ. Proc., § 438, subd. (c)(1)(B)(i)-(ii).)   

“[I]n order for judicial notice to support a motion for judgment on the pleadings by negating an express allegation of the pleading, the notice must be of something that cannot reasonably be controverted…The same is true of evidentiary admissions or concessions.” (Columbia Casualty Co. v. Northwestern Nat. Ins. Co. (1991) 231 Cal.App.3d 457, 468.)   

JUDICIAL NOTICE

Defendant’s request for judicial notice of Vehicle Code section 21224(a) is granted.

EVIDENTIARY OBJECTIONS

The Court sustains Defendant’s evidentiary objections.

MEET AND CONFER

A motion for judgment on the pleadings must be accompanied by a meet and confer declaration demonstrating an attempt to meet and confer in person or by telephone, at least five days before the date a motion for judgment on the pleadings is filed. (Code Civ. Proc., § 439.) Here, the Defendant’s counsel declares that he telephoned and sent a letter to Plaintiff’s counsel requesting a meet and confer for this motion. (Black Decl. ¶ 2.) No response was received. (Id.)

Therefore, the meet and confer requirement has been met.

DISCUSSION

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.)

Defendant argues that no facts are plead that it was negligent or vicariously liable for the rider. Here, the Complaint states:

“On January 3, 2021 Plaintiff was riding his bicycle N/B on the beach bike path at or near the 2600 block of Ocean Front Walk in Venice, California. Plaintiff was riding behind a motorized vehicle owned by Defendant Star Bike Rentals and operated by Defendant Benshalom and/or one or more DOE defendants that was also traveling N/B on the bike path. The motorized vehicle was driven by Defendant Benshalom and/or one or more Doe Defendants, whose true identity is unknown to Plaintiff at the time of this filing. The motorized vehicle driven by Defendants, including DOES 1-25, suddenly and unreasonably made an unsafe left turn toward the beach, directly in front of Plaintiff. Plaintiff was unable to stop in time and struck the motorized vehicle, causing him to be ejected from his bicycle. As a result, Plaintiff suffered injury to his property and his person.” (FAC, 4.) Plaintiff also alleges that Does 1 to 15 “were the agents or employees of other named defendants and acted within the scope of that agency or employment.” (FAC ¶ 6a.)

Defendant cites to Vehicle Code section 21224(a) which states “[a] person operating a motorized scooter is not subject to the provisions of this code relating to financial responsibility, registration, and license plate requirements, and, for those purposes, a motorized scooter is not a motor vehicle.”

Vehicle Code section 21220.5, defines a “motorized scooter” as “any two-wheeled device that has handlebars, has either a floorboard that is designed to be stood upon when riding or a seat and footrests in place of the floorboard, and is powered by an electric motor. This device may also be designed to be powered by human propulsion. For purposes of this section, a motorcycle, as defined in Section 400, a motor-driven cycle, as defined in Section 405, or a motorized bicycle or moped, as defined in Section 406, is not a motorized scooter.” (Veh. Code § 21220.5(a) [defining “motorized scooter under the definition in Veh. Code § 407.5].)

Defendant argues that it cannot be vicariously liable. (Motion at pp. 5–6.) Plaintiff responds that “Plaintiff’s cause of action for general negligence against Beachfront Bikes is not based on vicarious liability at all.” (Opposition at p. 5.) Rather, Plaintiff argues that the negligence cause of action is based on Beachfront Bike’s own negligent conduct. The Court agrees with Defendant that the complaint does not allege sufficient facts, however, the Court disagrees that the Court can determine based on what has been presented that Plaintiff’s negligence theories fail as a matter of law.

CONCLUSION AND ORDER

Accordingly, Defendant’s motion for judgment on the pleadings is GRANTED. Plaintiff shall file and serve any amended complaint within 30 days.

            Defendant shall give notice of the Court’s order and file a proof of service of such.