Judge Audra Mori, Case 19STCV07840 2022-08-12 Tentative Ruling

Plaintiff Yeny Delgado Lopez (“Plaintiff”) filed this action against Defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) alleging that on or about August 7, 2018, Plaintiff was a paying passenger on Defendant’s bus when Plaintiff was attacked by another person. The complaint alleges that Defendant allowed the person, who was a visible threat running toward the bus with a large brick in her hand, to board the bus without paying and attack Plaintiff. (Compl. ¶ 17.) Plaintiff alleges that Defendant could have prevented the passenger from boarding the bus by closing the bus doors or could have warned the passengers on the bus of the impending harm, but instead the person boarded the bus and “bashed” Plaintiff’s head with the brick and ran out of the bus through the back doors. (Id. at ¶¶ 19-20.) The complaint alleges causes of action for (1) negligence and (2) negligence by common carrier, Civil Code § 2100.

Defendant now moves for summary judgment as to Plaintiff’s complaint. Alternatively, Defendant moves for summary adjudication as to each of Plaintiff’s causes of action against it. Plaintiff opposes the motion, and Defendant filed a reply.

Defendant asserts that this matter concerns a sudden criminal assault that occurred without warning in a total of less than one minute on a bus owned and controlled by Defendant. Defendant contends that the bus operator had no warning of any kind of concerning the sudden incident until it occurred behind him on the bus after the assailant, Kristi Chantel Rodgers (“Rodgers”), boarded the bus, as Rodgers attacked Plaintiff just four seconds after entering. As to the first cause of action for negligence, Defendant avers that a public entity such as Defendant cannot be sued in tort on a theory of general negligence. As to the second cause of action, Defendant contends that while a public entity may be sued as a common carrier outside the breadth of the Government Claims Act, Defendant is not liable here because the Rodgers’s sudden assault on Plaintiff occurred without warning. Further, Defendant asserts that there are no allegations specifying any act or omission by the bus operator that would support a theory of respondeat superior against Defendant.

Plaintiff, first, acknowledges that Plaintiff’s cause of action for general negligence cannot continue against Defendant. Second, Plaintiff contends that concerning the cause of action for negligence by common carrier, there are triable issues of fact as to whether Defendant should have foreseen any danger, and whether Defendant could have prevented the harm that occurred to Plaintiff. Plaintiff contends the bus operator, Recto Decena (“Decena”), watched Rodgers run across his field of view for 19 seconds- from across the street to his bus’s door with the brick in her hand- and then board the bus, walk straight up to Plaintiff, and strike Plaintiff in the head multiple times. Plaintiff avers there were multiple warnings that put Decena, or should have put him, on notice that a possible attack could happen if Decena had exercised a duty of utmost care.

Defendant requests judicial notice be taken of the Criminal Case Summary in the criminal matter arising from the underlying incident herein, Los Angeles Superior Court, Northwest District, Case. No. XNWLA089233-01. (Mot. Exhibits in Support of Motion, Exh. K.)

The request as to the Case Summary in Criminal Case. No. XNWLA089233-01 is granted pursuant to Evidence Code §452(d).

Defendant, in reply, submits two objections to Plaintiff’s evidence submitted with the opposition. In particular, Defendant objects to paragraph 3 of Plaintiff’s counsel’s declaration referencing an Exhibit B and to an Exhibit 3 referenced in Plaintiff’s response to Defendant’s separate statement of undisputed material facts. As Defendant points out, there is no Exhibit B or Exhibit 3 submitted with the opposition. Rather, Plaintiff’s counsel’s declaration in paragraph 3 references a deposition transcript of Decena, which is attached to Plaintiff’s Exhibits in Support of her Opposition as Exhibit 2. Notably, Defendant does not object to Exhibit 2.

The court will therefore not rule on the objections as there is no Exhibit B or Exhibit 3 submitted with the opposition. (See CCP § 437c(q).) However, to be clear, the court does not consider an Exhibit B or Exhibit 3 with the opposition, as no such exhibits are attached to the opposition, but the court will consider Exhibit 2 to the extent Plaintiff references Decena’s deposition and cites the relevant testimony. Plaintiff’s counsel should ensure to properly identify, label and tab exhibits in the future to avoid this type of confusion.

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

Defendant avers that as a public entity it cannot be liable under a theory of general negligence. Plaintiff, in opposition, concedes that this claim should not continue against Defendant. (Opp. at p. 2:3-4.)

Defendant’s request for summary adjudication is granted as to the first cause of action for negligence. (Gov. Code § 815(a) [Except as otherwise provided by statute, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”]; Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850 [It has been recognized that it is impermissible to sue a public entity for common law negligence.].)

Civil Code § 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.” “Everyone 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 Civil Code § 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]; see also id.) 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.)

Furthermore, the duty imposed by Civil Code § 2100 includes a duty to protect passengers from assaults by others, including fellow passengers. (Id., supra. At 785-86, citing Terrell v. Key System (1945) 69 Cal.App.2d 682, 686; City and County of San Francisco v. Superior Court (1994) 31 Cal.App.4th 45, 48 (“San Francisco”).) However, the duty to protect passengers from assault lies only when the common carrier knows or should know that an assault is about to occur. (City and County of San Francisco, 31 Cal.App.4th at 48-49.) “This duty can only arise if in the exercise of the required degree of care the carrier has or should have knowledge of conditions from which it may reasonably be apprehended that an assault on a passenger may occur [citations], and has the ability in the exercise of that degree of care to prevent the injury [citations].” (Lopez, 40 Cal.3d at 786, quoting Terrell v. Key System (1945) 69 Cal.App.2d 682 [quotations omitted].) “No California case has held a common carrier liable for a sudden assault which occurs with no warning. Such liability would literally require an armed presence on every common carrier…” (City and County of San Francisco, 31 Cal.App.4th at 49.)

In Lopez, the California Supreme Court found the defendant, Southern California Rapid Transit District (RTD), a public corporation, had a duty to protect passengers aboard its buses from assaults by fellow passengers. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 783.) Lopez involved a group of juvenile passengers who began harassing passengers and a violent argument that ensued. (Id. at 784.) The bus driver was notified of the altercation but did not take any precautionary measures and continued to operate the bus. (Id.) Eventually, the argument escalated into a physical fight causing injury to plaintiffs. (Id.) The Supreme Court found that the defendant was not immune under the Government Code from the alleged facts. (Id. 791-95.)

In City and County of San Francisco, “[t]he City and County of San Francisco (City) [sought] a writ of mandate to compel respondent superior court to grant its motion for summary judgment. City [was a] defendant in a personal injury action brought by real party in interest Bridget Colbert, who was stabbed while riding on a City-operated bus and now sue[d] City for failing to prevent the incident. City contends it is not liable to real party because the stabbing was sudden and without warning.” (City and County of San Francisco v. Superior Court (1994) 31 Cal.App.4th 45, 47.) The Court of Appeal agreed and issued the writ. (Id.) The undisputed facts showed that

Bridget Colbert “boarded a City bus shortly after 10 p.m. She sat a few seats behind the driver. At a subsequent bus stop a man boarded the bus and took a seat somewhere behind [Bridget Colbert]. This man has only been described as a Black male wearing ‘dirty’ or ‘soiled’ clothing. There was nothing about his behavior or his appearance to raise any suspicion; neither real party nor the driver noticed anything unusual about him. Shortly thereafter the driver glanced in his mirror and saw the man open a small pocket knife. According to the driver's declaration in support of City's motion for summary judgment, the man suddenly—less than five seconds later—began stabbing real party. The driver did not have time to react in any way. Until the man opened his knife, there was no warning or cause for alarm, such as a warning shout from a passenger, to put the driver on notice of an attack. The man then fled the bus.”

(Id. at 47–48.) Under these facts, the Court found the evidence at summary judgment showed that “the attack came without warning.” (Id. at 49.) Further, regarding “some slight evidence of two prior assaults in the past year on the same bus line,” the “evidence, adduced without specific factual underpinning, [was] insufficient to put City on notice that this particular assault was to take place. The simple fact of two prior assaults at best could make a stronger case that City's drivers should respond to incidents of unruly passengers; the prior assaults cannot impose liability for a sudden and unheralded attack.” (Id. at 49.)

Here, the incident involving Rodgers and Plaintiff began at 7:42 a.m. as Plaintiff boarded Defendant’s bus. (UMF 1.) The exact timing and suddenness of the assault is verifiable because “the bus was running the DM NetVu video operating system, which captured true and exact video of the incident from multiple points of view;” video exhibits of the incident were created by Defendant’s expert from the video files of the bus. (UMF 2.) Unknown to Decena, the bus operator, Plaintiff had seen the assailant, Rodgers, at the bus stop before the bus arrived when Rodgers was either talking to herself or to Plaintiff; Plaintiff did not advise Decena of a possible situation and did not anticipate being hit by Rodgers. (UMF 3.) At 7:42:17 a.m., Plaintiff took a seat in the middle of the bus, on the right side, and Rodgers boarded the bus at 7:42:24 a.m. (UMF 4-5.) Rodgers walked straight up the aisle to Plaintiff and at 7:42:28 a.m. Rodgers’s right hand, while holding an indiscernible rectangular object, made contact with Plaintiff’s head. (UMF 6.) One second later, Decena immediately began shouting at Rodgers, and at 7:42:35 a.m., which was 11 seconds after Rodgers boarded the bus, Rodgers ended the assault and fled through the open rear cabin door. (UMF 7-8.) Once Rodgers boarded the bus carrying the unidentified object, Decena could not reasonably have anticipated the attack eleven seconds later, nor stopped it. (UMF 10.) As a result of the incident, Rodgers was charged with violation of Penal Code § 245(A)(1), assault with a deadly weapon, but the charge was dismissed when Rodgers pled nolo contendere to Penal Code § 245(A)(4), assault by means likely to produce great harm. (UMF 11.)

Defendant asserts that the video footage shows Rodgers jogging to the bus, which is not unusual, and that Decena did not have a reason or time to react to Rodgers boarding in any way. (UMF 5.) Defendant avers that Decena acted within the standard of care for a transit bus operator when he allowed passengers, including Rodgers, to board the bus when he should have, and that Decena was not reasonably capable of knowing Rodgers’s intentions as she quickly approached, and thus, had no reason to attempt to keep Rodgers off the bus. (UMF 9.) Defendant avers that the incident was a sudden assault that occurred without warning. Given the evidence regarding the suddenness of the incident, Defendant meets its moving burden to show it is entitled to judgment as a matter of law as to the second cause of action for negligence by common carrier. Accordingly, the burden shifts to Plaintiff to raise a triable issue of fact.

In opposition, Plaintiff attempts to dispute only Defendant’s undisputed material facts 5 and 9. Plaintiff contends the video footage shows Rodgers jogging towards the bus from the opposite side of traffic with a brick or rock in her hand, which Plaintiff refers to more generally as an “object” in the Opposition brief. (Opp. Pl.’s Response to UMF 5; Opp. at p. 7:5.) Plaintiff further argues that because Rodgers appears in the video footage 19 seconds before she arrived at the bus door, and the bus door could be closed in five to ten seconds, Decena had time to stop Rodgers’s boarding. (Opp. Pl.’s Response to UMF 5.) Further, Plaintiff asserts that Decena never received any training on the standard of care he was supposed to use for passengers’ safety, and that Decena should not have let Rodgers on the bus after she jogged to the bus with a brick or rock in her hand. (Opp. Pl.’s Response to UMF 9.)

Defendant submits three videos regarding the incident, labeled as: (1) “A-514768 video canvas - all cameras.mp4,” (2) “B - 514768 video canvas - follow subject.mp4,” and (3) "C - 514768 video canvas - 2 camera.mp4;” Plaintiff also submits a video of the incident. (Mot. Exhibits in Support of Motion Exhs. G-I; Opp. Exhibits in Support of Opposition Exh. 1.) The timestamp on each of the three videos begins at 7:42:00. The video begins with Defendant’s bus arriving at the subject bus stop, where Plaintiff is seen standing on the sidewalk waiting for the bus. The bus stop is on the right side of the street.

At 7:42:04, Rodgers is seen in the distance walking from the left side of the street to the right side of the street; another passenger not involved in the incident is seen in the foreground similarly walking across the street from the left side to the right side where the bus stop is.

Video inside the bus shows Plaintiff boarding the bus at 7:42:06, paying the bus fare, and taking a seat on the right side in the middle of the bus at 7:42:17.

While Plaintiff is boarding the bus and finding her seat, the video footage shows Rodgers finish crossing the street to right side. At about the time when the other passenger who was crossing the street in the foreground boards the bus, 7:42:16, Rodgers picks up her pace to a jog, enabling her to reach the bus before it leaves. As Rodgers gets closer to the bus, the video shows she is carrying an object in her right hand. It appears to be a light grey object, but it is not clearly discernable what the object is. Rodgers then boards the bus at 7:42:24, immediately walks past Decena without paying a fare, straight to Plaintiff, and begins attacking Plaintiff with the object in her right hand at 7:42:28. Within one second, Decena is heard yelling at Rodgers, and then Rodgers is seen exiting the bus through the back door at about 7:42:35, and thereafter, walking away from the bus.

The video evidence thus shows that the entire incident occurred within approximately 35 seconds of the bus arriving at the bus stop. Only four seconds pass from the time Rodgers boards the bus and immediately walks over to Plaintiff. While Plaintiff contends that 19 seconds passed from the time Rodgers began jogging until she arrived at the bus door, the video cited does not support this contention.[1] However, even assuming that Rodgers had been jogging toward the bus for seven to 19 seconds prior to boarding, Plaintiff does not establish that a person jogging to get on a bus is itself unusual such that Decena should have known that the attack was about to occur. (City and County of San Francisco, 31 Cal.App.4th at 48-49.) Likewise, to the extent Plaintiff asserts that Rodgers jogged across the street while traffic was still moving, the video footage shows that there were only a few vehicles on the road, that none of the vehicles were near Rodgers as she was crossing, that Rodgers was walking while she crossed, and that there was another passenger in the foreground who did substantially the same thing in order to catch the bus. Plaintiff does not demonstrate that these facts should have made Decena aware that the attack was about to occur. The video footage does show that Rodgers is carrying an object in her right hand, which Rodgers used to attack Plaintiff, as she approaches the bus; however, it is not clearly apparent what this object is, and the video does not show that Decena had reason to know before Rodgers boarded the bus that Rodgers would use the object, whether it was a brick, rock or something entirely different, as a weapon to attack a passenger.

Although Plaintiff contends that Decena should have stopped Rodgers from boarding the bus, Plaintiff does not cite to any evidence showing that Decena knew or should have known that Rodgers posed a threat to passengers on the bus until she boarded the bus. Plaintiff’s argument that Decena should have prevented Rodgers from entering the bus until he determined she was safe would essentially require Decena as the bus operator to have profiled Rodgers based on her appearance before subjectively determining that Rodgers was safe to board. Plaintiff does not cite any authority for imposing such a duty on a bus operator. Further, jogging towards a bus with an unidentified object in one hand is not sufficient to put a bus operator on notice that a criminal attack is about to take place, and Plaintiff does not otherwise describe any characteristics regarding Rodgers that should have raised Decena’s suspicion. (See City and County of San Francisco, 31 Cal.App.4th at 49 [“At least one California court has noted, albeit in dictum, that there is no duty to prevent criminal assailants from boarding buses in the first place.” (citing Taeleifi v. Southern Cal. Rapid Transit Dist. (1982) 130 Cal.App.3d 366, 369, overruled on other grounds in Lopez, 40 Cal.3d at 787.)].) What is more, Plaintiff does not dispute that that Decena could not have reasonably anticipated the attack or stopped it. (UMF 10.) Plaintiff, thus, does not establish that Decena foresaw or could have foreseen the attack prior to Rodgers boarding the bus such that Decena should have closed the bus doors or prevented Rodgers from boarding.

As in City and County of San Francisco, where a bus driver saw a man open a pocket knife and begin stabbing another passenger less than five seconds later, the video footage shows that Rodgers quickly boarded the bus with the object in her hand and within four seconds walked straight to Plaintiff and began attacking her. (City and County of San Francisco, 31 Cal.App.4th at 47-48.) Plaintiff does not dispute the suddenness or timing of the incident. (UMF 2, 8.) There is no evidence that Decena had warning or cause to think that the attack on Plaintiff was about to happen, and within one second of the attack beginning, Decena began to shout at Rodgers. Similarly to City and County of San Francisco, Rodgers’s attack on Plaintiff occurred without warning. (City and County of San Francisco, 31 Cal.App.4th at 48-49.)

Moreover, unlike in Lopez, where the bus driver was notified of the altercation that caused the plaintiffs’ injuries, and the driver did not take any precautionary measures and continued driving, in this case, Plaintiff did not advise Decena of a possible situation involving Rodgers when the bus arrived. (Lopez, 40 Cal.3d at 784.) Plaintiff herself did not anticipate being hit by Rodgers. (UMF 3.) Although the video footage shows Rodgers hastily board the bus with the object in her hand, even if Decena had identified what the object was at this point, of which there is no evidence he did, it is unclear what Decena could have done to prevent the attack once Rodgers boarded the bus. Again, the attack began within four seconds of Rodgers boarding and lasted about 11 seconds before Rodgers exited the bus. Additionally, while Plaintiff contends Decena never received training regarding the standard of care he was supposed to use for passengers’ safety, Plaintiff does not articulate how any such training could have prevented the attack, given the speed with which it occurred.

Defendant’s evidence shows that Rodgers’s attack on Plaintiff was sudden and without warning. Plaintiff has not submitted any evidence showing that Defendant was aware or notified that Rodgers presented an immediate danger to passengers, or that an unfortunate incident of this nature was likely to occur on Defendant’s bus. There was no warning prior to Rodgers being on board of the bus and attacking Plaintiff that shows that Defendant knew or should have known the attack was about to occur.

Based on the foregoing, Defendant’s motion is granted as to the second cause of action for negligence by common carrier.

Hon. Audra Mori

Judge of the Superior Court

[1] The video shows that seven to eight seconds passed between the time that Rodgers began to jog and the time that she entered the bus and that four more seconds passed until she attacked Plaintiff.