Judge Kerry Bensinger, Case 19STCV18859 2023-02-15 Tentative Ruling

On May 30, 2019, plaintiff Aura Merina Mejia (“Plaintiff”) filed this action against defendant Los Angeles County Metropolitan Transportation Authority (“Defendant”) for negligence and statutory liability under Civil Code, sections 1714, subd. (a), 2100, 2338 and 2343; Government Code, sections 815.2, subd. (a), 820, subd. (a), 835, and 840.2; and Vehicle Code, sections 21453, 21703, 22350, and 23103. The complaint arises out of a January 3, 2019 incident where Plaintiff suffered bodily injuries soon after boarding Defendant’s bus as a fare paying passenger.

On January 3, 2019, Plaintiff boarded Defendant’s bus as a passenger. On March 19, 2019, Plaintiff submitted a Claim for Damages alleging she was injured when the bus operator slammed on the brakes while Plaintiff was walking towards the back of the bus. (Undisputed Material Fact (“UMF”) Nos. 1 and 2.)

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

To prevail on a summary judgment motion that does not request summary adjudication in the alternative, the defendant must show conclusively that all of the plaintiff’s causes of action or legal theories fail as a matter of law. (See Jimenez v. Protective Life Ins. Co. (1992) 8 Cal.App.4th 528, 534, 10 Cal.Rptr.2d 326.) A defendant moving for summary judgment also has the burden “to identify and respond to all theories of liability reflected in the complaint, ‘even if not separately pleaded.’ [Citation.] Thus, ‘[w]hile a plaintiff ... need sustain its burden of proof only on one of the theories in order to prevail at trial, a defendant who seeks a summary judgment must define all of the theories alleged in the complaint and challenge each factually.’ ” (Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714; see Johnson v. Chui (2011) 199 Cal.App.4th 775, 778 [“a defendant is entitled to summary judgment only when all theories of liability have been negated”]; Farley v. El Tejon Unified School Dist. (1990) 225 Cal.App.3d 371, 379 [“to prevail on its motion for summary judgment, [the defendant] had the burden of negating every alternative theory of liability presented by the pleadings”].) Where a motion for summary judgment does “ ‘not negate theories of [the defendant’s] liability, the trial court should’ ” rule “ ‘[the defendant] failed to carry [its] initial burden and stop[ ] there.’ ” (Hedayati v. Interinsurance Exchange of the Automobile Club (2021) 67 Cal.App.5th 833, 846; see Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 945.)

“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.” (Civ. Code § 2100.) A public rapid transit bus is a common carrier under Civil Code Section 2100. (See Acosta v. Southern Cal. Rapid Transit Dist. (1970) 2 Cal.3d 19, 27; Lopez v. Southern Cal. Rapid Transit District (1985) 40 Cal.3d 19.) “Carriers of persons for reward have long been subject to a heightened duty of care.’ Such carriers ‘must use the utmost care and diligence for [passengers’] safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.’ While 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, Inc. (2016) 4 Cal.App.5th 329, 338.)

A common carrier’s safety rules are relevant to the issue of negligence. (MacColl v. Los Angeles Metropolitan Transit Authority (1966) 239 Cal.App.2d 302, 308 [“It is settled law in California that company safety rules are admissible as a circumstance to be considered in determining negligence.”].)

The elements of negligence are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

In their reply, Defendant objects to page 12, paragraph 3, of the Declaration of Greg Coolidge, filed in support of Plaintiff’s Opposition. The objection is overruled.

Defendant requests the Court take judicial notice of (1) Plaintiff’s Claim for Damages presented to Defendant on March 19, 2019, and (2) Plaintiff’s Complaint filed on May 30, 2019. The unopposed requests are granted. (Evid. Code § 452, subds. (c) and (d).)

As framed by the Complaint, Plaintiff alleges she was injured just after she boarded Defendant’s bus as a fare paying passenger on January 3, 2019. (Complaint, ¶ 6.) Plaintiff alleges she suffered bodily injuries when the subject bus accelerated at a high speed and stopped suddenly while Plaintiff was walking to her seat, causing Plaintiff to fall backward and strike her head and body on the interior of the bus. (Id.)

Plaintiff advances two alternative but related theories of negligence: 1) the bus driver performed negligently by stopping suddenly (“hard stop theory”) and 2) the bus driver performed negligently by pulling away from the bus stop before Plaintiff, who was a senior passenger, held onto a stanchion, handrail, or hanging strop, which in combination with the hard stop, caused her to fall backwards (“pulling away theory”). Based upon Plaintiff’s opposition, she relies primarily upon the pulling away theory to establish her case. However, as discussed above, to prevail on summary judgment, Defendant must negate both theories.

Defendant argues there are no triable issues of material fact because Plaintiff failed to present evidence the driver applied the brakes negligently, i.e., breached his duty of care by stopping suddenly. In support of its argument, Defendant points out Plaintiff testified in her deposition that she was facing the back of the bus when she was injured and does not know why the driver applied the brakes suddenly. (UMF No. 8.) Plaintiff also acknowledged that she does not have any way of contacting any potential witness to the incident. (UMF No. 10.) In sum, Defendant argues this evidence shows Plaintiff’s inability to prove the bus operator breached a duty of care because, as Defendant points out, applying the brakes in and of itself is not negligent.

Plaintiff argues Demetrius D’Narrow Jones’s (“Jones”) testimony raises triable issues of material fact. Jones testified as Defendant’s person most qualified pertaining to the safety policies in effect for bus drivers at the time of the incident. Jones testified that Rule 3.23 of the Defendant’s Metro Bus Operator Rule Book & Standard Operating Procedures (“Metro Rule Book”) provides in part that a “Metro vehicle must be operated in a manner that a safe stop can be made with a normal application of the brakes.” (Coolidge Decl., Exs. 1, at pp. 14:25-15:6, 16:8-11; 2, at p. R3-8.) Jones testified the purpose of this rule is for the bus driver to make a normal stop safely and to avoid sudden stops, so as to prevent people who are standing inside the bus or walking in the bus from falling down. (Coolidge Decl., Ex. 1, at pp. 15:11-16:2.) Plaintiff also points to Rule 3.152 of the Metro Rule Book, which provides that bus operators should “avoid sudden braking, anticipate braking requirement to allow for a gradual, smooth stop with a single brake application.” (Coolidge Decl., Exs. 1, at pp. 18:17-22, 22:18-23; 2, at p. S3-56.) Jones explained in his testimony that the purpose of this rule is for bus drivers to avoid sudden braking or abrupt stops so as to hopefully prevent passengers from falling down inside of the bus. (Coolidge Decl., Ex. 1, at pp. 22:24-23:18.)[1]

By reference to Jones’ testimony and the Metro Rule Book, Plaintiff argues the standard of care is to avoid sudden braking or abrupt stops. Because the bus operator applied the brakes suddenly, the driver breached his duty of care. (MacCal, supra, 239 Cal.App.2d at p. 308.) Given the foregoing, Defendant bears the burden to demonstrate the bus operator’s sudden stop was appropriate under the circumstances. Defendant did not present any evidence explaining the circumstances of the sudden stop. Ramon Reynoso, the bus operator on the day of incident, testified he had no recollection of the incident. While the application of brakes in and of itself does not establish a breach of a duty of care, an unwarranted “hard stop” might. Here, Plaintiff presented the following facts: the bus stopped suddenly causing Plaintiff to fall even though she was holding onto a rail; the hard stop, at least facially, violated the foregoing Metro Rules; and Mr. Reynoso could not explain the circumstances surrounding the incident or justify the sudden application of the brakes. Because there is a triable issue of material fact whether the hard stop breached the duty of care, Defendant’s motion for summary judgment is denied. A reasonable jury could conclude the bus operator did not operate the bus in a safe manner in accordance with Rules 3.23 and 3.152.

As stated above, Plaintiff pursues an alternative theory that the bus operator breached his duty of care by pulling away from the bus stop before Plaintiff, a senior passenger, had either taken a seat on the bus or held onto a stanchion, handrail, or hanging strap, in violation of Metro Rules 7.110 and 7.105 of the Metro Rule Book.

Rule 7.110 provides in part: “Allow seniors and/or customers with disabilities or any customer that is unstable (hands occupied, handling children/packages, etc.) to secure a seat, stanchion or handrail/strap behind the safety line before departing the bus zone.” (Coolidge Decl., Exs. 1, at p. 28:1-17; 2, at p. S7-7.) Rule 7.105 provides in part: “Operators must be aware that some customers (elderly, disabled, small children unstable, intoxicated, etc.) may require more time and more distance in boarding and alighting. Some customers may be physically unable and may be struggling with package, children, etc., which does not allow them to use their hands. These customers should be afforded more time and distance before departing the bus zone. More time may be needed for securing a seat, positioning at a stanchion, handrail, or a hanging strap.” (Coolidge Decl., Exs. 1, at p. 24:3-25:1; 2, at p. S7-3.)

In support of its motion for summary judgment Defendant makes two arguments: one procedural and one substantive.

Defendant argues Plaintiff did not present her “pull away theory” as part of the initial government claim. (Government Code section 945.5; 911.2.) Defendant cites to Fall River Joint Unified School District v. Superior Court (1988) 206 Cal.App.3d 431 (Fall River). In Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 447 (Stockett), the California Supreme Court discussed the presentment requirement and distinguished Fall River. The California High Court stated that “[o]nly where there has been a ‘complete shift in allegations, usually involving an effort to premise civil liability on acts or omissions committed at different times or by different persons than those described in the claim’ have courts generally found the complaint barred.” A plaintiff is not required to state all legal theories of recovery in a claim for damages. “The claim… need not specify each particular act or omission later proven to have caused the injury.” (Id.; see also Blair v. Superior Court (1990) 218 Cal.App.3d 221, 225 [“While an allegation as to the legal cause of an accident may be an element of the tort which must be pled in a complaint, section 910 does not impose upon an injured claimant an obligation to include it in the claim.”]

Here, Plaintiff did not shift her allegations. Plaintiff’s complaint does not allege a new set of facts committed at different times or places or shift liability to other parties. Indeed, it is the same set of facts only the theory of liability evolved based upon the purported violation of Metro Rules 7.110 and 7.105.

In its Reply, Defendant argues Plaintiff’s pulling away theory is foreclosed by her own testimony.[2] At her deposition, Plaintiff testified that at the time she fell she was holding onto a “pole” or “rail.” (Plaintiffs Deposition Transcript 34:4-17, 35:25-36:3; Exhibit A to Ashour’s Decla.)

Plaintiff relies upon her declaration dated January 20, 2023, filed in support of her opposition to summary judgment. In her declaration, Plaintiff states, “As I was walking towards the rear of the bus, the bus driver began to drive the bus away from the bus stop before I had either taken a seat or was holding onto a stanchion, handrail, or hanging strap with my hand.” (Decla. of Aura Mejia, para. 4.)(emphasis added.)

The problem for Plaintiff is that a subsequently filed declaration cannot impeach or controvert prior sworn deposition testimony on the very same point. (D’Amico v. Board of Med. Examiners (1974) 11 Cal.3d 1, 20-22; Harris v. Thomas Dee Engineering Co., Inc. (2021) 68 Cal.App.5th 594, 604 [“Properly understood, D'Amico does not state a rule regarding the admissibility of evidence; instead, the case provides guidance in determining whether a declaration that contradicts prior discovery responses is sufficient to create a triable issue of fact”]; Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4^th 1510, 1522 [“In a nutshell, the rule bars a party opposing summary judgment from filing a declaration that purports to impeach his or her own prior sworn testimony”].) Plaintiff does not present any argument or evidence explaining the contradiction. Consequently, Plaintiff’s declaration cannot raise a triable issue of fact on the question whether she was holding onto a handrail at the time the bus stopped. The evidence presented demonstrates Plaintiff was holding onto the rail.

Ultimately, the Court need not resolve this issue because, as previously stated, to prevail on its motion for summary judgment Defendant must negate both of Plaintiff’s theories of liability. Defendant has not. Plaintiff’s hard stop theory of liability survives Defendant’s motion.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] Viewed alternatively, even if Defendant carried its burden to present a prima facie case, Plaintiff has met her burden to demonstrate a triable issue of material fact.

[2] Although Defendant raised a procedural argument to foreclose Plaintiff’s pulling away theory, Defendant did not object to Plaintiff’s substantive argument. Any objection may be deemed waived, and the court may consider the opposing parties’ evidence. (Stalnaker v. Boeing (1986) 186 Cal.App.3d 1291,1302.) In any event, Defendant addresses Plaintiff’s pulling away theory on the merits.