Judge: Keri G. Katz, Case: 37-2022-00051776-CU-PO-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2022-00051776-CU-PO-CTL MCGARRY VS UBER TECHNOLOGIES INC [IMAGED] CAUSAL DOCUMENT/DATE FILED:

The court addresses the evidentiary issues. Defendant Mark Rycz's request for judicial notice is GRANTED.

The court then rules as follows. Defendant Mark Rycz's motion for judgment on the pleadings as to Plaintiffs' Third Amended Complaint is DENIED.

Rycz brings this motion as to the second cause of action for Negligence, seventh cause of action for Survivorship, eighth cause of action for Wrongful Death, and tenth cause of action for Declaratory Relief.

Rycz raises the same argument as to all causes of action – Rycz contends Plaintiffs cannot establish a duty owing from Rycz to decedent Stella Grace Yeh and/or Plaintiffs. As Rycz explains, Rycz demurrered to Plaintiffs' Third Amended Complaint on this same ground and Rycz's demurrer was overruled. Rycz now brings this motion under CCP § 438(g).

(g) The motion provided for in this section may be made even though either of the following conditions exist: (1) The moving party has already demurred to the complaint or answer, as the case may be, on the same grounds as is the basis for the motion provided for in this section and the demurrer has been overruled, provided that there has been a material change in applicable case law or statute since the ruling on the demurrer.

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As the 'material change in applicable case law or statute' Rycz cites to Jane Doe No. 1 v. Uber Technologies, Inc. (2022) 79 Cal.App.5th 410, 424, review denied (Aug. 24, 2022). The court finds Jane Doe No. 1 does not require a different result than that on demurrer. Jane Doe No. 1 addresses the issue of whether the Uber entities therein were in a special relationship with the Jane Does that would give rise to a duty to protect the Jane Does against third party assaults. There were no allegations in Jane Doe No. 1 of any contact between the Jane Does and actual Uber drivers. In contrast, the Third Amended Complaint alleges a duty based on a special relationship between Uber driver Rycz and Yeh created when Yeh used the Uber app to arrange a ride and Rycz responded and made contact with Yeh.

Such circumstances are significantly different from the third party criminal conduct at issue in Jane Doe No. 1. The court is not persuaded by Rycz's argument that, irrespective of the factual differences, the legal analysis in Jane Doe No. 1 requires the same result in this case. The result in Jane Doe No. 1 is premised on the court's determination that '[t]he facts alleged are not sufficiently definite or explicit to Calendar No.: Event ID:  TENTATIVE RULINGS

3001544  12 CASE NUMBER: CASE TITLE:  MCGARRY VS UBER TECHNOLOGIES INC [IMAGED]  37-2022-00051776-CU-PO-CTL constitute a 'specific promise' that the Uber entities would undertake a legal duty to protect from third party misconduct.' [Citation omitted.] Jane Doe No. 1, 79 Cal.App.5th at 423. The court finds the allegations of the Third Amended Complaint, including those relied on by the court in overruling Rycz's demurrer, sufficient to constitute a 'specific promise' that Rycz would undertake a legal duty to protect Yeh (TAC ¶¶ 132, 133). In these circumstances, the court finds Rycz fails to establish 'a material change in applicable case law or statute' so as to allow for judgment on the pleadings under CCP § 438(g).

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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