Judge: Lisa R. Jaskol, Case: 21STCV30927, Date: 2025-02-14 Tentative Ruling
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Case Number: 21STCV30927 Hearing Date: February 14, 2025 Dept: 28
Having considered the moving, opposition, reply, and joinder papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On August 20, 2021, Plaintiff Corina Hernandez (“Plaintiff”) filed this action against Defendants Bird Rides, Inc. (“Bird”), Bank of Hope (“Bank”), and Does 1-60 for negligence, negligence per se, negligent infliction of emotional distress, and violation of Business and Professions Code section 17200 et seq.
On March 15, 2023, the Court sustained the Bank’s demurrer to Plaintiff’s claims for negligence and negligent infliction of emotional distress with leave to amend.
On April 12, 2023, Plaintiff filed a first amended complaint against Bird, the Bank, and Does 1-60 for negligence, negligence per se, negligent infliction of emotional distress, public nuisance, and violation of Business and Professions Code section 17200 et seq.
On May 16, 2023, Bird and the Bank filed answers.
On November 21, 2023, Plaintiff amended the complaint to include Defendants Frank S. Lee as Doe 1 (“Frank Lee”), Eunice P. Lee as Doe 2 (“Eunice Lee”), and the 2011 Lee Family Trust dated March 21, 2011 as Doe 3 (“Trust”).
On January 10, 2024, Bird filed a suggestion of bankruptcy, asserting that it had filed a Voluntary Chapter 11 Petition in the United States Bankruptcy Court for the Southern District of Florida, Miami Division. Bird stated: “Pursuant to § 362 of Title 11 of the United States Code (the ‘Bankruptcy Code’), an automatic stay is in effect which enjoins, inter alia, continued prosecution of the above captioned case against [Bird], including collection of any pre-existing judgment.”
On July 11, 2024, Bird filed a notice of stay of proceedings.
On November 19, 2024, Bird filed a notice of permanent channeling injunction, bar order and stay of tort litigation. Bird stated that the bankruptcy court had permanently enjoined Plaintiff’s claim against Bird and channeled Plaintiff’s claim against Bird into a Tort Claims Trust.
On January 13, 2025, Frank Lee, Eunice Lee, and Trust filed an answer.
B. This motion
On August 23, 2024, the Bank filed a motion for summary judgment. The motion was set for hearing on January 8, 2025. On December 30, 2024, Plaintiff filed a late opposition. (The Court exercises its discretion to consider the opposition.) On January 3, 2025, the Bank filed a reply. On January 22, 2025, Frank Lee, Eunice Lee, and Trust filed a joinder in the motion. The Court continued the hearing to February 14, 2025.
PARTIES’ REQUESTS
The Bank asks the Court to grant summary judgment on Plaintiff’s claims against the Bank for negligence and negligent infliction of emotional distress.
Plaintiff asks the Court to deny the Bank's motion.
Frank Lee, Eunice Lee, and Trust ask the Court to join the Bank’s motion and to grant summary judgment in their favor.
LEGAL STANDARD
A. Summary judgment
“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1).) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)
In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)
B. Negligence
“The elements of a negligence claim [are] . . .: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)
“ ‘ “Generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others....” ' [Citation.]” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 411, quoting Padilla v. Rodas (2008) 160 Cal.App.4th 742, 747.)
“A defendant's control over property is sufficient to create a duty to protect owed to persons using the property.” (Colonial Van & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 497, citing Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162, 1166; Soto v. Union Pacific Railroad Co. (2020) 45 Cal.App.5th 168, 177 (Soto) [“the rationale being that whoever has the means to control the property can take steps to prevent the harm”].) “Conversely, absent any control of the property, a defendant cannot be held liable for a dangerous condition on that property.” (Ibid., citing Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1241 [“ ‘[t]he law does not impose responsibility where there is no duty because of the absence of a right to control’ ”]; Soto, supra, 45 Cal.App.5th at p. 177; Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1084 [generally, there is no right to control another's property].)
C. “Direct victim” negligent infliction of emotional distress
“ ‘ “Direct victim” cases are cases in which the plaintiff’s claim of emotional distress is not based upon witnessing an injury to someone else, but rather is based upon the violation of a duty owed directly to the plaintiff. “[T]he label ‘direct victim’ arose to distinguish cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is ‘assumed by the defendant or imposed on the defendant as a matter of law, or that arises out of a relationship between the two.’ [Citation.] In these cases, the limits [on bystander cases ...] have no direct application. [Citations.] Rather, well-settled principles of negligence are invoked to determine whether all elements of a cause of action, including duty, are present in a given case.” ’ ” (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205-206, quoting Wooden v. Raveling (1998) 61 Cal.App.4th 1035, 1038; see Lawson v. Management Activities, Inc. (1999) 69 Cal.App.4th 652, 656 (Lawson) [“At the outset we must remind ourselves that, however handy the acronym, as our Supreme Court has made abundantly clear, there is no such thing as the independent tort of negligent infliction of emotional distress”]; Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984 [“[T]here is no independent tort of negligent infliction of emotional distress. [Citation.] The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element”].)
PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE
Denied.
DISCUSSION
A. The first amended complaint
The first amended complaint includes the following allegations:
On or around August 21, 2019, Plaintiff was walking on West Olympic Boulevard’s sidewalk at or near the Bank located at 3267 West Olympic Boulevard in Los Angeles when she tripped and fell over a Bird electric scooter that had been left unattended in the middle of the sidewalk.
Bird failed to ensure that its scooter was upright and properly parked and failed to ensure its scooter was not parked in a way that impeded clearance on the sidewalk in violation of the Vehicle Code and the Los Angeles Department of Transportation’s Dockless On-Demand Personal Mobility Permit Rules.
The Bank owned, operated, maintained, and controlled the premises at or near 3267 West Olympic Boulevard in Los Angeles (“premises”).
The Bank and Bird were on notice that Bird electric scooters were being left unattended on the sidewalk at the premises. The unattended scooters on the sidewalk constituted a dangerous condition because they impeded the safe passage of pedestrians at the premises.
Defendants negligently and carelessly allowed the unattended scooters to cause a dangerous condition at the premises and thereby breached duties owed to Plaintiff. Defendants knew or should have known that the unattended scooters on the sidewalk created an unreasonable risk of harm to Plaintiff.
Defendants knew or should have known of the severe emotional distress in Plaintiff they caused due to their actions/inactions.
As the result of Defendants’ negligence, Plaintiff was injured and sustained damages.
The first amended complaint asserts claims for negligence and negligent infliction of emotional distress against the Bank.
B. Undisputed facts
On or around August 21, 2019, Plaintiff was walking eastbound on the sidewalk on West Olympic Boulevard that abuts the property where the Bank conducts business at 3267 W. Olympic Blvd., Los Angeles CA 90006 (“premises”), when Plaintiff allegedly tripped and fell over a Bird scooter that had been left unattended in the middle of the sidewalk by an unknown person.
Plaintiff concedes that the State of California, City of Los Angeles, and/or the County of Los Angeles owned the sidewalk where she tripped and fell over the Bird scooter when she filed a government claim against each of the public entities. However, none of the public entities are defendants in this action.
The Bank did not own the sidewalk abutting the premises (the “sidewalk”) at any time prior to and on August 21, 2019. The Bank has never owned the sidewalk. The Bank did not control the sidewalk at any time prior to and on August 21, 2019. The Bank has never controlled or exercised control over the sidewalk. The Bank did not place any signs, marketing, or any other property on the sidewalk at any time prior to and on August 21, 2019.
The Bank did not own the Bird scooter that Plaintiff encountered and tripped over that was allegedly left unattended in the middle of the sidewalk next to or at the premises. The Bank has never owned any Bird scooter. The Bank did not place the Bird scooter that Plaintiff encountered and tripped over in the middle of the sidewalk next to or at the premises.
On August 21, 2019, the Bank operated out of the building it rented at the premises. The Bank had leased the building since November 26, 2012 from landlords Frank Lee, Eunice Lee, and the Trust (“landlords”).
The Lease Agreement between the Bank and the landlords limits the Bank’s use or occupancy of the building to the interior of the building. Under Section 16.6 of the lease agreement, the landlords agreed to indemnify the Bank for any “losses or claims . . . that may arise in the . . . Common Areas or parking lots thereof, which are not the result of the Tenant’s negligence.”
On November 21, 2023, Plaintiff filed amendments to the complaint identifying the Bank’s landlords as Doe Defendants.
C. The Bank has carried its initial burden on summary judgment
The Bank argues that it owed Plaintiff no duty because the undisputed facts show that Plaintiff’s accident occurred on premises that the Bank did not own or control and involved an allegedly dangerous condition – the Bird scooter – that the Bank did not own and did not place on the sidewalk. (See UMF 10-11, 13-15.)
The Bank has carried its initial burden on summary judgment, shifting the burden to Plaintiff. (See Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 250 [“The owner or occupier of private property has a ‘duty’ to exercise reasonable care ‘to maintain [its property] ... in a reasonably safe condition’ [citations], but that duty does not generally extend to the publicly owned sidewalks and streets abutting the property unless the owner or occupier has ‘exercise[d] control over [that publicly owned] property’ [citations]”].)
D. Plaintiff has not raised a triable issue of fact
Plaintiff argues that the Bank “is subject to Civil Code section 1714, which states that all persons are responsible for an injury caused to another by their want of ordinary care or skill in the management of their property.” (Opposition p. 2.) However, Plaintiff has presented no evidence showing that the Bank acted with a “want of ordinary care or skill” in the management of any property which the Bank owned or controlled – that is, the leased premises used to operate the Bank.
Plaintiff also argues that the Bank was on notice that scooters were widely in use and were being left on City sidewalks, where they posed a hazard to pedestrians like Plaintiff. According to Plaintiff, “[a] reasonable inference from that knowledge . . . is that businesses adjacent to sidewalks, including [the Bank] had a duty to ‘reasonably’ ensure that scooters left on those sidewalks did not pose a hazard to its customers or other pedestrians using adjacent sidewalks.” (Opposition p. 4.)
Imposition of a duty on the Bank to protect Plaintiff is not a “reasonable inference” from the Bank’s presumed general knowledge that someone other than the Bank was leaving scooters which the Bank did not own on sidewalks which the Bank did not own or control.
Because Plaintiff has not raised a triable issue of fact concerning the Bank's duty, the Court grants the Bank’s motion for summary judgment.
E. The Court denies Plaintiff’s request to deny the Bank's motion under Code of Civil Procedure section 437c, subdivision (h)
Plaintiff asks the Court to deny the Bank's motion under Code of Civil Procedure section 437c, subdivision (h), which provides in part:
“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.”
(Code Civ. Proc., § 437c, subd. (h).)
In a declaration, Plaintiff’s counsel states:
“Because of the bankruptcy stay involving Defendant Bird, it has not participated in this litigation. Plaintiff has propounded discovery, which I reasonably believe, could identify the individual who last used the scooter on which my client tripped and the time it was left on the sidewalk adjacent to [the Bank’s] place of business. (See Exhibit 2.) It is unclear whether Defendant Bird will respond due to the stay it currently enjoys. For this reason, I request that the Court deny the motion pending a ruling on Plaintiff’s request to lift the stay and/or make any other orders necessary to enable Plaintiff to obtain the information necessary to establish that [the Bank’s] negligence was a substantial factor in causing her injuries.” (Richie dec. ¶ 9.)
As noted, it is undisputed that the Bank did not own or control the sidewalk and did not place the scooter on the sidewalk. Therefore, knowing the identity of the person who last used the scooter and the time it was left on the sidewalk would not enable Plaintiff to establish the Bank’s negligence. As a result, Plaintiff has not shown that facts essential to justify opposition may exist but cannot, for reasons stated, be presented. The Court denies Plaintiff’s request to deny the motion under Code of Civil Procedure section 437c, subdivision (h).
F. Joinder request
“A party may not obtain a summary judgment in its favor by joining another party’s motion for summary judgment because of the requirement that each moving party file a separate statement of undisputed facts [citation].” (L. Edmon & C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2024) ¶ 9:27.1, p. 9(l)-18, citing Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660-661.)
At the February 14, 2025 hearing on the motion for summary judgment and joinder request, counsel for Frank Lee, Eunice Lee, and Trust argued that they were entitled to join the Bank's motion for summary judgment even though they did not file a separate statement of undisputed facts. The Court continues the hearing on the joinder request for further consideration.
CONCLUSION
The Court GRANTS Defendant Bank of Hope’s motion for summary judgment.
The Court CONTINUES the hearing on the request for joinder filed by Defendants Frank S. Lee, Eunice P. Lee, and the 2011 Lee Family Trust dated March 21, 2011 to March 18, 2025 at 1:30 p.m. in Department 28 of the Spring Street Courthouse.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.