Judge: Kerry Bensinger, Case: 21STCV06462, Date: 2023-01-09 Tentative Ruling

Case Number: 21STCV06462    Hearing Date: January 9, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On February 18, 2021, plaintiff Barbara Potenga (“Plaintiff”) filed this action against defendants Cynergy Cycles, Specialized Bicycles Santa Monica, and Specialized Bicycle Components, Inc.  On August 18, 2021, Plaintiff amended the Complaint to name Specialized Retail Stores, LLC (“Defendant”) as a Doe defendant and dismissed the other three entities previously named in the complaint. 

Plaintiff alleges Defendant negligently inspected and repaired her bicycle and failed to ensure that all the parts on her bicycle were repaired and properly connected before releasing the bicycle to her.  (Compl., ¶ GN-1.)  Plaintiff also alleges that Defendant was negligent in their hiring, training, monitoring, and supervision of its employees.  (Ibid.)  Plaintiff alleges that she was injured due to the bicycle “having parts that were not properly connected and inspected.”  (Ibid.)    

On October 26, 2022, Defendant filed a motion for summary judgment or, alternatively, summary adjudication.  Defendant contends that: (1) Plaintiff has no evidence that it was negligent in its hiring, training, or supervision of its employees, and (2) that any negligence by Defendant caused or contributed to Plaintiff’s accident. 

II.          LEGAL STANDARD

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.)

III.        EVIDENTIARY OBJECTIONS

Plaintiff’s Evidentiary Objections to Paragraphs 6 and 7 of the Declaration of Stephen M. Werner are OVERRULED. 

IV.         DISCUSSION

Background Facts

The general facts of the case are undisputed.  Plaintiff alleges that Defendant was negligent because one of its employees failed to reattach a component known as an axle nut bracket ("the bracket") after replacing a tire innertube on the rear wheel.  (UMF No. 2.)  Plaintiff also alleges that she was injured because Specialized "carelessly, recklessly and negligently hired, trained, monitored, supervised and employed their employees."  (UMF No. 3.) 

On February 22, 2019, Plaintiff (who was seventy-two years old at the time) went to a Specialized Bicycle company store because her bicycle's rear tire was flat. At the store, Plaintiff paid for a new tire innertube to install on the bicycle.  (UMF No. 4.)  The store does not sell Huffy Brand bicycles, and Plaintiff had won the bicycle in a raffle held at a church.  (UMF No. 5.)  Plaintiff rode the bicycle on Ocean Park Drive towards Lincoln Avenue in Santa Monica after picking it up following the repair of its rear tire.  (UMF No. 6.)  As she was riding down a sloped section of roadway, she attempted to slow the bicycle using the brakes, but was unable to do so.  (UMF No. 7.)  She was unable to stop, and so crashed into an area of bushes and injured her shoulder.  (UMF No. 7.)  The bicycle is a beach cruiser bicycle 'equipped with coaster brakes that require backward pedaling to activate.  (UMF No. 8.) 

Causation

Plaintiff claims that during the repair, the rear axle nut bracket was removed from the rear axle and the chain stay.  (UMF No. 10.)  While the subject bicycle has the nut and components of the brake hub, Plaintiff alleges that the bracket was reattached only to the axle nut and not clamped back on to the chain stay after repair.  (UMF No. 10.) 

Defendant’s expert Stephen M. Werner ("Dr. Werner"), who is an engineer, an experienced bicyclist, and an expert on bicycle design and performance, inspected the subject bicycle and its brake components.  It is undisputed that Dr. Werner “backpedaled” the left crank arm by hanging weights of twenty and fifty pounds on the bicycle left pedal while the bicycle was fixed on a stand.  (UMF No. 17.)  This effectively applied the coaster brake.  (Ibid.)  The experiment was to compare the performance of the bracket with the bracket clamped to the chain stay with the performance of the brakes with the bracket not clamped to the chain stay.  (Ibid.)  Defendant contends that Dr. Werner’s testing established that the performance of the coaster brake is unaffected by whether the bracket is clamped to the chain stay.  (Werner Decl., ¶¶ 6-7.)  Defendant argues that even if the bracket had been clamped to the chain stay, the stopping distance would not have been materially affected.

In opposition, Plaintiff introduces the testimony of her expert, Alexander W. LaRiviere, who states that if the brake arm is not attached to the chain stay, the braking components are not stabilized and will cause them to rotate with the wheel when the coaster brake is applied.  (LaRiviere Decl., ¶ 21b.)  He states that the “whole purpose of the secured brake arm is to stabilize the hub assembly and prevent the rotation of the inner braking components at the time the brake shoes are pressed against the drum of the inner hub shell during brake activation.”  (Id., ¶ 21f.)  He further explains that the brakes malfunctioned because there was no braking friction when the brake shoes rotated with the hub shell.”  (Id., ¶ 21g.)  He states in an experiment, he disconnected the brake arm strap on the exemplar bicycle, mounted the bicycle, and pedaled it up to a speed of approximately 10 miles per hour.  (Id, ¶ 22.)  When he applied the coaster brake in a normal manner, “the pedals were suddenly forced away from [his] feet”, which indicated an “obvious braking issue.”  (Ibid.)  LaRiviere further observed that after he stopped the bicycle, the brake arm had rotated from its original position. 

On reply, Defendant argues that LaRiviere’s experiment was unscientific and subjective.  Defendant argues that LaRiviere’s conclusions are inconsistent with Plaintiff’s own deposition testimony, because LaRiviere’s theory assumes that Plaintiff’s feet were “pushed off the pedals while she was attempting to brake.”  (Reply, 4:12-14.)  This argument misconstrues LaRiviere’s testimony, which is that the pedals pressed away from his feet.  Pedals pressing away from his feet does not contradict Plaintiff’s testimony that she was pedaling backward with no effect.

Because Plaintiff has successfully raised a triable issue of fact, Defendant’s motion for summary judgment on this ground is DENIED.

Negligent Hiring

Defendant next argues that it is entitled to summary judgment or summary adjudication because there is no evidence that there was any negligent hiring or supervision.  However, summary adjudication may only be granted as to an entire cause of action, affirmative defense, claim for damage, or issue of duty.  (Code Civ. Proc., § 437c, subd. (f)(1).)  Defendant’s request for summary adjudication of a separate theory of liability, such as negligent hiring or supervision, on a single cause of action for negligence is therefore improper.  (Ibid. [“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.”])

VI.    CONCLUSION

          In light of the foregoing, the Motion for summary judgment/summary adjudication is DENIED.

Moving party to give notice. 

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 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.