Judge Kerry Bensinger, Case 22STCV14827 2023-02-03 Tentative Ruling

On May 4, 2022, plaintiff Freda Porter (“Plaintiff”) filed this action against defendants Estrella 1980 LLC (“Estrella LLC”), Lyft, Inc. (“Lyft”), and Does 1 to 25 (“Doe Defendants”), asserting three causes of action for (1) general negligence, (2) premises liability, and (3) products liability.

On September 1, 2022, the Court entered an order (1) granting Plaintiff and Lyft’s joint stipulation to allow the filing of the First Amended Complaint (“FAC”), and (2) deeming the FAC filed as of September 1, 2022. The FAC is attached as an exhibit to the parties’ proposed stipulation and order. (See Stipulation and Order, filed September 1, 2022, Exhibit A – the FAC.)

The FAC alleges the following. On or about May 4, 2020, Plaintiff was lawfully on the premises at or near 1980 Estrella Ave., Los Angeles, CA 90007 (the “Premises”). She was walking within the common area of the Premises when she tripped on an unmarked, unsecured, and/or unattended electric scooter and/or similar object, causing her to trip and fall, and sustain severe injury and pain. At all relevant times, Estrella LLC and the Doe Defendants had sole and exclusive custody and control of the aforesaid Premises and activities occurring therein. They owed Plaintiff a duty to keep the Premises in good and safe condition. However, the defendants breached that duty by allowing a dangerous condition to exist on the Premises.

The party against whom a complaint is filed may demur the pleading on the ground that it does not state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.)

In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not on the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) However, it does not accept as true deductions, contentions, or conclusions of law or fact. (Stonehouse Homes LLC v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 538.)

The Court finds that Lyft has complied with the meet and confer requirement. (Demurrer, declaration of Kenneth Taketa, ¶ 8.)

Plaintiff asserts only one claim against Lyft; the third cause of action for products liability. The claim is placed on a Judicial Council form. (See Page 6 of the FAC.)

Plaintiff alleges the following under her products liability claim. On or about May 4, 2020, Plaintiff was injured by an electric scooter. Lyft knew the product would be purchased and used without inspection for defects. The product was defective when it left the control of the defendant. The product at the time of the injury was being used in the manner intended and reasonably foreseeable by defendants as involving a substantial danger that was not readily apparent to a consumer. Adequate warnings of the danger were not given. Plaintiff was a “bystander to the use of the product,” “user of the product,” and “other” (but does not specify what “other” means).

The Judicial Council form asked Plaintiff to check which box applies with regards to the legal (proximate) result of her injury. Plaintiff checked the box for strict liability, stating that Lyft (a) manufactured or assembled the product, (b) designed and manufactured component parts, and (c) sold the product to the public. Plaintiff also checked the boxes for negligence and breach of warranty, without providing further details.

Lyft now demurs to Plaintiff’s products liability claim, making the following arguments.

First, Plaintiff alleges she “tripped on an unmarked, unsecured and/or unattended electric scooter,” but there are no facts suggesting the scooter was a Lyft product, had a manufacturing defect, design defect, or defective instructions. (Demurrer, p. 3:10-14.) Further, Plaintiff does not allege facts demonstrating a defect in the scooter was the cause of her alleged injuries. (Demurrer, p. 3:14-15.) There can be no liability without causation. (Demurrer, p. 3:15.)

Second, Plaintiff’s negligence products liability claim is nothing more than a boilerplate recitation of the cause of action with no facts supporting that claim. (Demurrer, p. 3:16-18.) Plaintiff fails to allege any facts to establish that Lyft owed her a duty of care, breached that duty, or she was injured because of Lyft’s negligence. (Demurrer, p. 3:18-20.)

Third, Plaintiff’s first and second causes of action for negligence and premises liability, respectively, against Estrella LLC and Doe Defendants preclude a negligent products liability claim against Lyft. (Demurrer, p. 3:21-23.) Plaintiff’s allegations are clear that she was not riding or using the scooter in any way, but merely tripped and fell over an object at Estrella’s premises. (Demurrer, p. 3:23-24.)

Fourth, the Court should dismiss Plaintiff’s products liability cause of action against Lyft, with prejudice, because Plaintiff has failed to amend her complaint to render it sufficient despite being given the opportunity to do so. (Demurrer, p. 3:25-28.)

In opposition, Plaintiff argues that the Court should overrule the demurrer because Plaintiff’s products liability claim is not based on a defective product, “but the failure of [Lyft] to distribute and/or collect the electric scooter with due care to avoid exposing the public, including Plaintiff, to a foreseeable risk of harm due to the electric scooter being left unattended and/or unmarked.” (Opposition, p. 1:10-12.) Plaintiff’s claims further clarify that a company cannot reasonably expect to leave its product unattended and/or unmarked, when it is likely to be dangerous when used or misused, without warning the unsuspecting public. (Opposition, p. 1:16-19.) For example, Lyft should have placed a warning light that flashes or a motion sensor which triggers the scooter to make a noise when it is left unattended. (Opposition, p. 1:20-22.)

Nevertheless, Plaintiff further argues, if the Court is inclined to sustain the demurrer, to allow her the opportunity to amend the FAC. (Opposition, p. 8:20-21.)

“[A] plaintiff may seek recovery in a ‘products liability case’ either ‘on the theory of strict liability in tort or on the theory of negligence.’ [Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 478 (“Merrill”).) “The rules of products liability ‘focus responsibility for defects, whether negligently or nonnegligently caused, on the manufacturer of the completed product.’ [Citation.]” (Id. at pp. 478–479.)

“Thus, under either a negligence or a strict liability theory of products liability, to recover from a manufacturer, a plaintiff must prove that a defect caused injury.” (Merrill, supra, 26 Cal.4th at p. 479 [emphasis added].) “Under a negligence theory, a plaintiff must also prove ‘an additional element, namely, that the defect in the product was due to negligence of the defendant.’ [Citations.]” (Ibid.) “A plaintiff may base a products liability claim on a defect in either the design or manufacture of a product.” (Ibid.)

“In a strict liability action based on defective design, ‘a product is defective ... either (1) if the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if ... the benefits of the challenged design do not outweigh the risk of danger inherent in such design.’ [Citation.]” (Merrill, supra, 26 Cal.4th at p. 479 [emphasis added].)

“Similarly, in a products liability action based on negligence in the design of a product ‘placed on the market,’ the test of negligent design ‘involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm.’ [Citation.]” (Merrill, supra, 26 Cal.4th at p. 479 [emphasis added].) “‘In short, even if a seller had done all that he could reasonably have done to warn about a risk or hazard related to the way a product was designed, it could be that a reasonable person would conclude that the magnitude of the reasonably foreseeable harm as designed outweighed the utility of the product as so designed.’ [Citation.]” (Ibid.)

Here, the Court finds that the FAC does not allege facts sufficient to support either a negligence or strict liability theory of products liability for the following reasons.

First, Plaintiff claims in her opposition that she is trying to allege that Lyft left the scooter unmarked and/or unattended, thereby creating a reasonably foreseeable risk of injury to herself and the public.

However, those allegations are only alleged under the first and second causes of action for negligence and premises liability, respectively, which she is not asserting against Lyft. In other words, to the extent that Plaintiff is claiming Lyft was negligent in leaving the scooter unattended, that allegation is missing in the FAC. In any event, it is unclear how that allegation would support a products liability claim based on strict liability or negligence, since both theories (as the case law above provides) require Plaintiff to allege a defect with the scooter. Plaintiff has not alleged facts showing that the scooter was defective. However, she implies she intended to do so in her opposition. For example, she argues the Scooter should have been designed with a warning light that flashes or a motion sensor which triggers the scooter to make a noise when it is left unattended.

Second, Plaintiff fails to allege facts sufficient to show that any alleged defect caused her injuries.

Third and most importantly, as Lyft argues, Plaintiff fails to allege that the scooter at issue was Lyft’s. She alleges under her third cause of action that she was injured by Lyft’s defective product, but fails to allege that defective product was the scooter.

“‘Where the defect raised … by demurrer is reasonably capable of cure, ‘leave to amend is routinely and liberally granted to give the plaintiff a chance to cure the defect in question.’ [Citations.] ... It is generally an abuse of discretion to deny leave to amend, because the drastic step of denial of the opportunity to correct the curable defect effectively terminates the pleader’s action. [Citation.]” (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1174–1175 (“Velez”).)

Here, Lyft suggests in its reply that Plaintiff cannot amend the FAC because Lyft had no duty to protect Plaintiff from a trip and fall accident on private property owned by a third party. (Reply, p. 1:12-13.) It argues that “[u]nder Plaintiff’s boundless theory of liability, the manufacturer of any product would be liable every time a person tripped and fell over its product. Plaintiff’s Opposition provides no basis, nor is there any, for this Court to impose an unlimited duty on Lyft.” (Reply, p. 1:13-15.)

However, the Court finds the FAC is reasonably capable of cure in light of the arguments Plaintiff has raised in her opposition. For example, Plaintiff argues that she intended to allege that a defect (e.g., failure to have warning lights) in the scooter (not just the fact that the scooter was left unattended) caused her injuries. Further, the issue of duty is not as clear cut as Lyft suggests.

Plaintiff Freda Porter is ordered to file and serve her Second Amended Complaint within 30 days of this ruling.

Defendants are ordered to file and serve their responsive pleading within 30 days of service of the Second Amended Complaint.

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