Judge: Kerry Bensinger, Case: 22STCV14827, Date: 2023-05-11 Tentative Ruling

Case Number: 22STCV14827    Hearing Date: May 11, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     May 11, 2023                         TRIAL DATE:  November 1, 2023

CASE:                         Freda Porter v. Estrella 1980 LLC, et al.

CASE NO.:                 22STCV14827

DEMURRER TO PLAINTIFF’S SECOND AMENDED COMPLAINT

MOVING PARTY:               Defendant Lyft, Inc.

RESPONDING PARTY:     Plaintiff Freda Porter

I.          BACKGROUND

            On May 4, 2022, plaintiff Freda Porter (“Plaintiff”) filed this action on a Judicial Council Form against defendants Estrella 1980 LLC (“Estrella LLC”) and Lyft, Inc. (“Lyft”) for (1) General Negligence, (2) Premises Liability, and (3) Products Liability.  The First and Second Causes of Action were asserted against Estrella LLC only and the Third Cause of Action for Products Liability was asserted against Lyft only.

 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, attached as an exhibit to the parties’ proposed stipulation and order (see Stipulation and Order, filed September 1, 2022, Exhibit A – the FAC), amended the Third Cause of Action as asserting a claim of General Negligence against Lyft.

            On December 29, 2022, Lyft filed a demurrer to the Third Cause of Action of the FAC.  The Court, treating the Third Cause of Action as a products liability claim, found that the FAC did not allege facts sufficient to support either a negligence or strict liability theory of products liability and sustained the demurrer with leave to amend.

            On March 6, 2023, Plaintiff filed the Second Amended Complaint (“SAC”).  The allegations of the SAC mirror the allegations of the FAC.

            On April 14, 2023, Lyft filed this demurrer to the Third Cause of Action of the SAC.  Plaintiff opposes and Lyft replies.

II.        LEGAL STANDARD FOR DEMURRER  

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations.  (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.)   Judicial Council forms are not immune to demurrer.  (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.) 

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).)  “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.”  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)   

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)  Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)  

III.      DISCUSSION

A.    Meet and Confer 

Defense counsel has complied with the meet and confer requirement.  (Declaration of Kenneth Taketa.)   

B.     Factual Allegations of the Third Cause of Action For General Negligence

The SAC alleges as follows:

On or about May4, 2020, Plaintiff was injured as she lawfully walked at or near 1980 Estrella Ave., Los Angeles, CA 90007 and tripped on an unmarked, unsecured and/or unattended Lyft electric scooter and/or similar object owned, managed, controlled, maintained, distributed, deployed and/or manufactured by Defendants LYFT; INC., a Delaware corporation; and DOES 26 TO 50, inclusive, that was unattended, unmarked and allowed to exist and be left in disrepair at or near the subject premises.

At all times mentioned herein, Defendants LYFT, INC., a Delaware corporation; and DOES 26 TO 50, inclusive, and each of them, were engaged in the business of manufacturing, fabricating, designing, packaging, assembling, distributing, leasing, buying, selling, inspecting, servicing, installing, repairing, marketing, warranting, supervising and providing the subject product to the general public for purchase and/or rental.

Plaintiff believes and alleges that at all times mentioned herein, Defendants LYFT, INC., a Delaware corporation; and DOES 26 TO 50, inclusive, owed duties of care to Plaintiff and others to act reasonably, prudently, and safely so as to avoid subjecting Plaintiff and others to any unnecessary threat, risk or injury.

On information and belief, Defendants were negligent in designing, manufacturing, supplying, installing, inspecting, repairing, and/or renting, distributing and/or collecting the electric scooter and/or similar object.  Defendants failed to use the amount of care in designing, manufacturing, supplying, installing, inspecting, repairing, and/or renting, distributing and/or collecting the electric scooter and/or similar object that a reasonably careful designer, manufacturer, supplier, installer, and/or repairer, distributor and collector would have used in similar circumstances to avoid exposing Plaintiff to a foreseeable risk of harm.  Defendants knew or should have known about the likelihood and severity of potential harm from the product which could have been avoided by taking safety measures to reduce or avoid the harm.

Defendants knew or reasonably should have known that the electric scooter and/or similar object were dangerous or were likely to be dangerous when used or misused, left unattended and/or unmarked in a reasonably foreseeable manner.  Defendants knew or reasonably should have known that users and/or bystanders would not realize the danger.  Defendants failed to adequately warn of the danger or instruct on the safe use, distribution and collection of the electric scooter and/or similar object.  A reasonable manufacturer, distributor, and/or seller, distributor and collector under the same or similar circumstances would have warned of the danger or instructed on the safe use, distribution and collection of the electric scooter and/or similar object.

C.     General Negligence

            On April 10, 2023, the Court of Appeal decided Hacala v. Bird Rides, Inc. (2023) 306 Cal. Rptr.3d 3099; 2023 WL 2851729 (Hacala).  Lyft cites this case briefly in a footnote, but neither party addresses the impact of this case on the issues herein.  In Hacala, the Court held that Bird “having deployed its dock-less scooters onto public streets, Bird’s general duty encompasses an obligation, among other things, to use ordinary care to locate and move a Bird scooter when the scooter poses an unreasonable risk of danger to others.  Moreover, because it was foreseeable that someone could be injured if Bird breached this duty, and because Bird agreed to take measures to prevent such injuries when it obtained the permit from the City, we cannot find that public policy clearly supports an exception to the fundamental principle that a company like Bird is liable for injuries proximately caused by its want of ordinary care in the management of its property.”  (Id. at p. 907.)  No doubt, the allegations pled in Hacala are far more specific and somewhat different.  Nonetheless, the Court will continue the hearing on the Demurrer to allow the parties to address the allegations pled herein and the impact of Hacala on the Demurrer.   

IV.       CONCLUSION

Based on the foregoing, the demurrer is continued to June 16, 2023.   Lyft is to file its responsive pleading by May 24, 2023 (16 court days before the hearing) and Plaintiff is file their responsive pleading by June 5, 2023  (9 court days before the hearing).   

Moving party to give notice. 

Dated:   May 11, 2023                                                ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            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.