Judge Michael E. Whitaker, Case 20STCV30580 2022-08-12 Tentative Ruling

Judge: Michael E. Whitaker, Case: 20STCV30580, Date: 2022-08-12 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged). Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

Plaintiff Cassandra Tang sued defendants Access Services (“Access”) and San Gabriel Transit, Inc. (“SGT”) (collectively, “Defendants”) based on injuries Plaintiff alleges she sustained as a passenger on Defendants’ ADA paratransit services. Plaintiff alleges the driver of the vehicle, John Barela (“Barela”), failed to follow proper procedure for unloading wheelchair passengers from the vehicle, which caused Plaintiff to roll down the vehicle’s wheelchair ramp uncontrolled, fall to the ground, and become separated from her wheelchair. (First Amended Complaint, ¶¶ 18-19.)

Defendants move the Court for summary adjudication on four causes of action in Plaintiff’s first amended complaint: (1) First cause of action for violation of the Disabled Persons Act, Civil Code §§ 54 et seq. (“DPA”); (2) Second cause of action for violation of the Unruh Civil Rights Act, Civil Code §§ 51, et seq. (“Unruh Act”); (3) Fourth cause of action for negligent entrustment hiring, training, supervision, and retention against SGT; and (4) Fifth cause of action for violation of a mandatory duty under Government Code section 815.6 against Access. Plaintiff opposes the motion.

In its June 16, 2022 Minute Order, the Court found that there are no triable issues of material fact regarding Defendants’ Undisputed Material Facts Nos. 25-36, and that it could determine, as a matter of law, that Plaintiff cannot establish that SGT failed to train Barela “to proficiency” such that Access breached a mandatory public duty under 49 Code of Federal Regulations sections 37.165(f) and 37.173. The Court also found that Defendants failed to meet their burden of production/persuasion to establish that there is no triable issue of material fact, and they are entitled to judgment as a matter of law, regarding Plaintiff’s fourth cause of action for negligent entrustment, hiring, retention, training, and supervision. Hence, the Court granted in part Defendants’ motion for summary adjudication as to the fifth cause of action in Plaintiff’s complaint and denied in part the motion as to Plaintiff’s fourth cause of action. (See June 16, 2022 Minute Order.)

With respect to Plaintiff’s first and second causes of action, the Court continued the hearing to this date and ordered the parties to submit supplemental briefing on the sole issue of whether a single instance of a purported denial to access based on a failure to train an employee “to proficiency” can establish a violation of the ADA and, thus, a violation of the DPA and Unruh Act. The parties have timely submitted their supplemental briefing in support of the motion, supplemental opposition, and reply.

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty . . . .” (Code Civ. Proc., § 437c, subd. (f)(1).)

“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[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.” (Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

Under Evidence Code section 451, “[j]udicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution…(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. ” (Evid. Code, § 451, subds. (a), (f).)

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(d), (g), (h).)

The Court “shall take notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)

The Court grants Defendants’ request for judicial notice per Evidence Code sections 452, subdivision (d) and 453. The Court grants Plaintiff’s request for judicial notice per Evidence Code sections 452, subdivision (c) and 453.

With respect to Defendants’ objections to the Declaration of Greg Hanson (“Hanson”) in Support of Opposition to Motion for Summary Adjudication, the Court rules as follows:

In addition to several other arguments that the Court addresses further below, the crux of Defendants’ motion is their contention that Plaintiff cannot establish that SGT failed to train Barela “to proficiency”, as required by 49 Code of Federal Regulations section 37.173. Plaintiff’s theory of Defendants’ liability in the first, second, fourth, and fifth causes of action is that SGT failed to train Barela “to proficiency” regarding how to safely unload wheelchair users from Access’s vehicles, which caused Barela to assume Plaintiff did not need assistance unloading from the vehicle and allow Plaintiff to roll backward down the vehicle’s ramp unassisted.

With respect to the Unruh Act, Civil Code section 51 provides, in pertinent part:

“(a) This section shall be known, and may be cited, as the Unruh Civil Rights Act. [¶] (b) All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. [¶] ... [¶] (f) A violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101–336) shall also constitute a violation of this section.”

(Civ. Code, § 51, subds. (a), (b), (f).) “The legislature’s intent in adding subdivision (f) was to provide disabled Californians injured by violations of the ADA with remedies provided by [the Unruh Act]. A plaintiff who establishes a violation of the ADA, therefore, need not prove intentional discrimination in order to obtain damages under [the Unruh Act].” (Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 665.)

“(a) Individuals with disabilities or medical conditions have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians' offices, public facilities, and other public places.[¶]…[¶] (c) A violation of the right of an individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) also constitutes a violation of this section.”

“(a)(1) Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, medical facilities, including hospitals, clinics, and physicians' offices, and privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation (whether private, public, franchised, licensed, contracted, or otherwise provided), telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.

[¶]…[¶] (3) ‘Full and equal access,’ for purposes of this section in its application to transportation, means access that meets the standards of Titles II and III of the Americans with Disabilities Act of 1990 (Public Law 101-336) and federal regulations adopted pursuant thereto, except that, if the laws of this state prescribe higher standards, it shall mean access that meets those higher standards.”

(Civ. Code, § 541, subds. (a)(1), (a)(3).) A plaintiff claiming discrimination may assert claims under both the DPA and the Unruh Act. The two Acts are “plainly consistent” and so may be asserted simultaneously. (Flowers v. Prasad (2015) 238 Cal.App.4th 930, 940-942.)

Plaintiff’s first cause of action for violation of DPA and second cause of action for violation of the Unruh Act are premised upon the allegation that Defendants failed to train Barela “to proficiency” as required by the ADA.

With respect to a public entity’s obligations under the ADA concerning training of its employees, 49 Code of Federal Regulations section 37.173 provides:

“Each public or private entity which operates a fixed route or demand responsive system shall ensure that personnel are trained to proficiency, as appropriate to their duties, so that they operate vehicles and equipment safely and properly assist and treat individuals with disabilities who use the service in a respectful and courteous way, with appropriate attention to the difference among individuals with disabilities.”

The requirements for training under section 37.173 “apply to private as well as to public providers, of demand responsive as well as of fixed route service.” (49 C.F.R. Part 37, App. D.)[1] “[T]raining must be to proficiency[]”, which, according to the DOT, means that “every employee of a transportation provider who is involved with service to persons with disabilities must have been trained so that he or she knows what needs to be done to provide the service in the right way.” (Ibid.) “When it comes to providing service to individuals with disabilities, ignorance is no excuse for failure.” (Ibid.) The DOT further elaborates on training “to proficiency” as follows:

“While there is no specific requirement for recurrent or refresher training, there is an obligation to ensure that, at any given time, employees are trained to proficiency. An employee who has forgotten what he was told in past training sessions, so that he or she does not know what needs to be done to serve individuals with disabilities, does not meet the standard of being trained to proficiency.

[] [T]raining must be appropriate to the duties of each employee. A paratransit dispatcher probably must know how to use a TDD and enough about various disabilities to know what sort of vehicle to dispatch. A bus driver must know how to operate lifts and securement devices properly. A mechanic who works on lifts must know how to maintain them. Cross-training, while useful in some instances, is not required, so long as each employee is trained to proficiency in what he or she does with respect to service to individuals with disabilities.

[] [T]he training requirement goes both to technical tasks and human relations. Employees obviously need to know how to run equipment the right way. If an employee will be assisting wheelchair users in transferring from a wheelchair to a vehicle seat, the employee needs training in how to do this safely. But every public contact employee also has to understand the necessity of treating individuals with disabilities courteously and respectfully, and the details of what that involves.

….Public entities who contract with private entities to have service provided—above all, complementary paratransit—are responsible for ensuring that contractor personnel receive the appropriate training.”

Where, as here, a public entity contracts with a private entity to provide transportation services, section 37.23 sets forth the parties’ respective obligations as follows:

“When a public entity enters into a contractual or other arrangement (including, but not limited to, a grant, subgrant, or cooperative agreement) or relationship with a private entity to operate fixed route or demand responsive service, the public entity shall ensure that the private entity meets the requirements of this part that would apply to the public entity if the public entity itself provided the service.”

Private entities are required “to ‘stand in the shoes’ of public entities with whom they contract to provide transportation services.” (Id.) A public entity “may not contract away its ADA responsibilities” in either vehicle acquisition requirements or service provision requirements. (Id.)

Here, as a threshold matter, Defendants assert that Plaintiff’s first and second causes of action fail as a matter of law because Plaintiff’s allegations amount to an isolated incident of a purported barrier to accessibility, which does not give rise to a claim under the ADA. Defendants chiefly rely on Midgett v. Tri-County Metro. Transp. Dist. of Oregon (9th Cir. 2001) 254 F.3d 846 in support of their proposition that the ADA does not contemplate perfect service such that a single incident of a paratransit operator’s negligence in assisting a wheelchair-using commuter does not constitute an ADA violation.

In Midgett, the Ninth Circuit addressed the denial of the plaintiff’s request for permanent injunction against a municipal corporation to conform to the regulations of the ADA in the provision of fixed-route public transportation. The plaintiff advanced affidavits and declarations from himself and five other riders, each of whom used the public entity’s lift service. (Midgett, supra, 254 F.3d 846 at p. 848.) Plaintiff and the riders alleged, among other things, numerous occasions of problems with the bus lifts and bus drivers failing to properly secure wheelchairs. (Ibid.) As Defendants note, the Midgett court stated that,

“The regulations implementing the ADA do not contemplate perfect service for wheelchair-using bus commuters. Under certain circumstances, 49 C.F.R. § 37.163 permits buses with inoperative lifts in this type of service area to remain in service for up to three days after the problem is discovered, and § 37.161(c) establishes that isolated or temporary problems caused by lift malfunctions are not violations of the ADA.”

(Id. at pp. 849-850.) Defendants base their argument on the following passage from Midgett:

“Plaintiff's evidence establishes several frustrating, but isolated, instances of malfunctioning lift service on Tri–Met. The evidence also shows that, unfortunately, a few individual Tri–Met operators have not treated passengers as they are required and are trained to do. Under the regulations, these occasional problems do not, without more, establish a violation of the ADA. At most, the evidence shows past violations of the ADA.”

(Id. at p. 850, emphasis added.) The Court finds two problems with Defendants’ reliance on Midgett.

First, the primary complaint by the plaintiff in Midgett concerned instances of malfunctioning lifts. As the Midgett court indicated, 49 C.F.R. Part 37 expressly states that instances of inoperative lifts or isolated or temporary problems cause by lift malfunctions are not violations of the ADA. (See id. at pp. 849-850; 49 C.F.R. §§ 37.163, 37.161, subdivision (c).) Here, Plaintiff’s claims against Defendants do not involve any issues with the lift, but rather Barela’s alleged negligent conduct caused by SGT’s failure to train him “to proficiency”. By extension, the Court finds Defendants’ reliance on Anderson v. Rochester-Genesse Regional Transportation Authority (2nd Cir. 2003) 337 F.3d 201, and Foley v. City of Lafayette, Ind. (7th Cir. 2004) 369 F.3d 925 – cases from separate federal jurisdictions which, similarly, addressed interruptions in service or access that were expressly exempted by the federal code – to be uninstructive.

Second, although the Midgett court found the plaintiff’s allegations of occasional problems, without more, did not establish a violation of the ADA, the court also suggested that the same occasional problems could nevertheless constitute past violations of the ADA. Accordingly, the Court does not find that Midgett conclusively establishes that a single incident, like Plaintiff’s claim here, is insufficient to constitute a violation of the ADA – as Defendants would suggest. Instead, the Court finds that the court’s statement in Midgett that, “at most, the plaintiff’s evidence show[ed] past violations,” infers that an occasional problem or isolated incident can establish an ADA violation. Midgett does not, however, offer any further guidance on the circumstances in which an occasional problem or isolated incident would rise to a violation of the ADA.

In opposition, Plaintiff argues, first, that a violation of the Unruh Act can be founded upon a violation of the ADA or its implementing regulations. Plaintiff points to Civil Code section 51, subdivision (f) to support this claim. The Court notes that section 51, subdivision (f) contains no such language concerning the implementing regulations of the ADA. (See Civ. Code, § 51, subd. (f) [“A violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101–336) shall also constitute a violation of this section.”].)

Plaintiff next argues the cases on which Defendants rely are distinguishable from this case because those cases involved actions against public entities under Title II of the ADA; whereas here, Plaintiff asserts her claim is against both a public entity, subject to Title II, and a private entity, subject to Title III, who, because they contracted to provide transportation services, are subject to the more stringent standard of Title III. Plaintiff advances a number of unpublished cases in support.

As to the second cause of action, Plaintiff argues that the purported denial of access by Defendants can still violate the DPA without rising to a violation of the ADA. Specifically, Plaintiff contends SGT denied Plaintiff full and equal access because SGT failed to meet the standards of Titles II and III of the ADA when it failed to train Barela “to proficiency”. (See Civ. Code, § 541, subd. (a)(3) [“‘Full and equal access,’ for purposes of this section in its application to transportation, means access that meets the standards of Titles II and III of the Americans with Disabilities Act of 1990 (Public Law 101-336) and federal regulations adopted pursuant thereto…”].) However, Plaintiff’s first cause of action in the first amended complaint alleges, in pertinent part,

“Section 54(c) of the California Civil Code provides that a violation of the rights of an individual under the ADA also constitutes a violation of §54 of the California Civil Code. Section 54.1(d) of the California Civil Code provides that a violation of the rights of an individual under the ADA also constitutes a violation of §54.1 of the California Civil Code.

The violation of Plaintiff’s rights under the ADA and California law alleged in the Complaint have resulted in the denial to Plaintiff of full and equal access to the services offered by Defendants[.]”

Thus, the Court finds that Plaintiff’s pleadings frame the issue in the first cause of action as being premised upon conduct by Defendants that violates the ADA. Consequently, the Court finds a resolution of the Defendants’ threshold issue regarding a single incident to be applicable to the Court’s analysis with respect to both the first and second causes of action.

In their supplemental briefing, Defendants concede there is a dearth of binding authority on the issue of whether a single instance of a purported denial to access based on a failure to train an employee “to proficiency” can establish a violation of the ADA. Defendants advance an unpublished case from the Ninth Circuit that approvingly cites Midgett in support of its conclusion that a single instance of a bus driver’s failure to properly implement his training does not establish a violation of the ADA. (See Jones v. National Railroad Passenger Corporation, Amtrack (9th Cir. 2021) 848 Fed.Appx. 293, 294 [finding that the plaintiff could not establish a violation of the ADA “based on one isolated instance of employee negligence”].) Defendants also advance a number of cases addressing temporary or isolated situations – whose facts are distinguishable from this case - alleged to have constituted a denial of access, but were nevertheless found not to be violations of the ADA. (See Chapman v. Pier 1 Imports (U.S.) Inc. (9th Cir. 2015) 779 F.3d 1001; Foley, supra, 359 F.3d 925; Tanner v. Wal-Mart Stores, Inc. (D.N.H. Feb. 8, 2000) 2000 WL 620425; Sharp v. Capitol City Brewing Co., LLC (D.D.C. 2010) 680 F.Supp.2d 51.)

In opposition, Plaintiff contends that the cases advanced by Defendants are not controlling because those cases were decided under the standard for relief under Title II, which requires proof of discriminatory intent for money damages or both (1) a past wrong and (2) actual injury or immediate danger of actual injury for injunctive relief. (See Midgett, supra, 254 F.3d at pp. 850-851.) Plaintiff argues that in cases decided under Title III, any violation of the ADA is sufficient for an award of damages under DPA or the Unruh Act. Plaintiff thus relies on Hulihan v. Regional Transp. Com’n of Southern Nevada (2011) 833 F.Supp.2d 1226 to show that a single instance of discrimination may constitute a violation of the ADA, even under Title II.

Defendants have the better argument. To begin, Hulihan found a violation of the ADA based on two instances of conduct toward the same plaintiff that, taken together, amounted to a genuine issue of material fact as to whether the plaintiff had been excluded from equal participation in the paratransit system. (See Hulihan, supra, 833 F.Supp.3d at p. 1232.) And although Jones is not a published decision, the Court finds the Ninth Circuit’s reasoning and interpretation within Jones of its own decision in Midgett, along with the weight of the authority cited by Defendants, to be persuasive. Put differently, the Court finds that “an isolated or temporary hindrance to access does not give rise to a claim under the ADA.” (Chapman, supra, 779 F.3d at p. 1008; see also Midgett, supra, 254 F.3d at p. 850; Foley, supra, 359 F.3d 925; cf. Sharp v. Capitol Brewing Company, LLC (2010) 680 F.Supp.2d 51 [alleging five claims of ADA violation]; Hulihan, supra, 833 F.Supp.3d 1226 [alleging two claims of ADA violation].)

Finally, Plaintiff’s contention that the Court’s analysis should take into account whether her claim is being made under Title II or Title II is of no moment. The Court notes that the common thread in the authorities cited by the parties to be the respective court’s threshold determination of whether the plaintiff has established a violation of the ADA. (See, e.g., Hulihan, supra, 833 F.Supp.3d 1226; Munson, supra, 46 Cal.4th 661; Chapman, supra, 779 F.3d 1001; Foley, supra, 359 F.3d 925; Midgett, supra, 254 F.3d 846.)

Based on the foregoing, the Court concludes that Plaintiff allegations fail to establish a violation of the ADA such that her first cause of action for violation of DPA and second cause of action for violation of the Unruh Act fail as a matter of law. In other words, without more, Plaintiff’s allegations of an isolated instance of negligent conduct by Barela are insufficient to constitute a violation of the ADA by Defendants such that Plaintiff would be entitled to relief under either statutory scheme.

Government Code section 815.6 provides,”[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty.” (Gov. Code, § 815.6.) “To construe a statute as imposing a mandatory duty on a public entity, the mandatory nature of the duty must be phrased in explicit and forceful language.” (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 898-899.)

A plaintiff must satisfy three elements to impose public entity liability under Government Code section 815.6: (1) a mandatory duty was imposed on the public entity by an enactment; (2) the enactment was designed to protect against the particular kind of injury allegedly suffered; and (3) the breach of the mandatory statutory duty proximately caused the injury. (B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 227.)

“Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts. We examine the language, function and apparent purpose of each cited enactment to determine if any or each creates a mandatory duty designed to protect against the injury allegedly suffered by plaintiff.” (B.H., supra, 62 Cal.4th p. 228 [cleaned up].) “[T]he enactment as issue must be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken. It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion. Court have construed this first prong rather strictly, finding a mandatory duty only if the enactment affirmatively imposes the duty and provides implementing guidelines.” (Guzman, supra, 46 Cal.4th at p. 898 [cleaned up] [emphasis original].)

Here, Access concedes that 49 Code of Federal Regulations sections 37.165, subdivision (f), and 37.173 impose a duty on Access to ensure individuals with disabilities have access to paratransit service equally available to individuals without disabilities. Access argues, however, that the duty imposed by these regulations was not designed to protect Plaintiff from the type of harm she alleges she suffered in this case, i.e., that her wheelchair rolled backwards down the vehicle ramp because Barela did not assist her. The Court disagrees.

Section 37.165, subdivision (f) expressly states that “[w]here necessary or upon request, the entity’s personnel shall assist individuals with disabilities with the use of securement systems, ramps and lifts.” (49 C.F.R., § 37.165, subd. (f).) Appendix D provides further insight into this provision’s intent, as follows:

“The entity's personnel have an obligation to ensure that a passenger with a disability is able to take advantage of the accessibility and safety features on vehicles. Consequently, the driver or other personnel must provide assistance with the use of lifts, ramps, and securement devices. For example, the driver must deploy the lift properly and safely. If the passenger cannot do so independently, the driver must assist the passenger with using the securement device. On a vehicle which uses a ramp for entry, the driver may have to assist in pushing a manual wheelchair up the ramp (particularly where the ramp slope is relatively steep). All these actions may involve a driver leaving his seat. Even in entities whose drivers traditionally do not leave their seats (e.g., because of labor-management agreements or company rules), this assistance must be provided. This rule overrides any requirements to the contrary.”

“Each public or private entity which operates a fixed route or demand responsive system shall ensure that personnel are trained to proficiency, as appropriate to their duties, so that they operate vehicles and equipment safely and properly assist and treat individuals with disabilities who use the service in a respectful and courteous way, with appropriate attention to the difference among individuals with disabilities.”

(49 C.F.R. § 37.173, emphasis added.) Appendix D notes that, “[a] well-trained workforce is essential in ensuring that the accessibility-related equipment and accommodations required by the ADA actually result in the delivery of good transportation service to individuals with disabilities.” (Id.) Thus, “every employee of a transportation provider who is involved with service to persons with disabilities must have been trained so that he or she knows what needs to be done to provide the service in the right way.” (Id.)

Accordingly, the Court finds the mandatory duties imposed by sections 37.165, subdivision (f), and 37.173 were designed to protect individuals like Plaintiff from injuries like those she suffered here: injury of a wheelchair passenger on a vehicle ramp in the absence of assistance by the driver.

Access next contends that Plaintiff cannot establish that Access breached a duty under

sections 37.165, subdivision (f) or 37.173 because Plaintiff cannot establish that SGT failed to train Barela “to proficiency”.

Access advances the declaration of Hector Rodriguez (“Rodriguez”), who is the Deputy Executive Director for Access. Rodriguez states that Access does not itself provide complementary ADA paratransit, but contracts with independent regional providers who have their own facilities and select, train, and hire personnel. (Declaration of Hector Rodriguez, ¶ 7.) Rodriguez states Access’s contract with SGT requires SGT to train its drivers “to proficiency” and establishes assistance protocols and practices that must be part of that training. (Declaration of Hector Rodriguez, ¶ 9, Exhibits 1 and 2.) Rodriguez states that Access enforces SGT’s contractual requirements through audits of SGT’s driver training files when a driver is requested to be added to the list of eligible drivers and then annually thereafter. (Declaration of Hector Rodriguez, ¶ 10.) Rodriguez avers that Access also sends out its own road safety inspectors to randomly observe contractor drivers in the field approximately 200 times per months. (Ibid.) Rodriguez avers Access also monitors customer service complaints filed with its customer service department, and reviews collision and incident reports submitted to its risk management department, as well as SmartDrive video events. (Ibid.) Finally, Rodriguez states that Access undergoes periodic compliance reviews by the Federal Transit Administration, which administers aspects of Title II B of the ADA per DOT regulations. (Declaration of Hector Rodriguez, ¶ 14, Exhibit 5.)

Access advances the declaration of Albert Andujo (“Andujo”), who is the operations manager for SGT. Andujo states that SGT’s contract with Access requires SGT to train its operators “to proficiency” in many different areas. (Declaration of Albert Andujo, ¶ 3.) Andujo states that SGT’s training of its paratransit operators is performed by a trainer certified by the Transportation Safety Institute (“TSI”), which is a federal agency under the DOT. (Ibid.) According to Andujo, TSI certification requires completion of a course that lasts approximately one week, with certified trainers periodically attending additional training afterward through TSI. (Ibid.) Andujo avers Gabriel Velasquez (“Velasquez”), a former employee of SGT who was TSI-certified at the time, trained Barela. (Declaration of Albert Andujo, ¶ 4.) Andujo states Velasquez started as a driver with SGT, then became a Road Supervisor and then a TSI-certified trainer before finally being promoted to Safety Manager. (Ibid.) Andujo states Barela had to complete a training course with Vasquez before being able to drive with SGT. Andujo states the classroom portion of the training lasts about one week, consisting of written material, instructional videos, and oral questions and answers. (Declaration of Albert Andujo, ¶ 5.) Andujo avers a portion of the training involves practicing loading and unloading wheelchair passengers. (Ibid.) Andujo states that once students successfully complete the classroom training, they attend behind-the-wheel training, in which they ride with a trainer and practice picking up passengers, transporting them to their destination, and dropping passengers off at their location. (Ibid.) Finally, Andujo states that, after operators complete their training, they have periodic retraining by TSI-certified trainers to maintain operator proficiency, as required by their contract. (Declaration of Albert Andujo, ¶ 5.)

Access also advances the declaration of Barela. Barela states that he was trained by SGT on how to operate Access paratransit vans and to provide services to person using those vans before starting as a paratransit operator. (Declaration of John Barela, ¶ 2.) According to Barela, that training included, among other things, that drivers are required to provide assistance to users as needed or requested by those riders. (Ibid.) Barela states his training also consisted of instruction on the proper procedure for assisting persons in wheelchairs up and down vehicle access ramps when requested or necessary. (Ibid.) Barela avers the classroom portion of his training, which lasted about four or five days, consisted of Velasquez explaining the written material, answering questions, and then reviewing a video covering the topic of the particular training. (Declaration of John Barela, ¶ 3.) Barela states the training on wheelchair securement included written material, videos, question and answer sessions, and practice securing and un-securing wheelchairs with either the trainer or one of the students playing the role of the wheelchair passenger. (Ibid.) Barela further states the training included practice of securing and un-securing the wheelchair passenger with different vehicle types used by SGT, as well as loading and unloading the wheelchair passenger by pushing them up and down the ramps and lifts equipped on the various SGT vehicles. (Ibid.) Barela states the classroom training was followed by behind-the-wheel training for approximately one week, in which experienced drivers accompanied students on the road to apply the concepts covered in the classroom portion, i.e., loading and unloading wheelchair passengers. (Declaration of John Barela, ¶ 4.)

As to the subject incident, Barela avers that when he picked up Plaintiff on the date of the incident, he deployed the ramp Plaintiff rolled herself in her wheelchair up the ramp into the van without his assistance. (Declaration of John Barela, ¶ 5.) Barela avers he then attached the securements to secure Plaintiff’s wheelchair inside the van. (Ibid.) Barela avers that, upon arriving at Plaintiff’s destination, he removed the securements to allow Plaintiff to exit the van, opened the side door, and deployed the ramp while Plaintiff wheeled herself backward as she was talking to a male passenger in the rear seat. (Ibid.) Barela states he then walked over and stood near the open front passenger door and waited for Plaintiff to finish her conversation before assisting her down the ramp in her wheelchair. (Ibid.) Barela then states that, as he was standing near the door, Plaintiff rolled herself out of the van and backward down the ramp. (Ibid.) Barela states that he caught Plaintiff on the ramp as her wheelchair tipped backward, then walked Plaintiff in her wheelchair down the ramp before correcting Plaintiff and her wheelchair into an upright position with the assistance of a bystander. (Ibid.)

The evidence demonstrates Plaintiff cannot establish that Access failed to uphold the requirements for training by SGT under section 37.173 to constitute a breach of its mandatory public duty. Put differently, Access has shown SGT had trained Barela so that he knew what needed to be done to provide the service in the right way, and that Barela had not forgotten what he was told in past training sessions such that he did not know what needed to be done to serve individuals with disabilities. Defendants have shifted the burden to Plaintiff to raise a triable issue of material fact as to whether SGT failed to train Barela “to proficiency” to constitute a breach of the duty to train drivers under section 37.173.

In opposition, Plaintiff advances the transcript of Barela’s deposition taken January 28, 2022. At deposition Barela testified that, during his training, he was instructed on how to load and unload passengers and how to secure wheelchairs, walkers, and scooters. (Declaration of Steven L. Derby, Exhibit D, pp. 39-40.) With respect to loading, Barela testified that he was trained to offer assistance to wheelchair passengers on the vehicle ramp and, if they decline assistance, to stand by as close as possible to spot them in the event they do need assistance and nevertheless assist as necessary. (Declaration of Steven L. Derby, Exhibit D, pp. 40-42.) Barela testified that, when a manual wheelchair passenger declines assistance for loading, he was trained to still be directly behind the passenger to assist as necessary. (Declaration of Steven L. Derby, Exhibit D, pp. 42-43.) With respect to unloading wheelchair passengers, Barela testified that he was trained to once again ask the passenger if they need assistance, regardless of whether they declined assistance with loading into the vehicle. (Declaration of Steven L. Derby, Exhibit D, pp. 40-42.)

Concerning the subject incident, Barela testified that once the van had reached Plaintiff’s destination, Barela did not have any conversation with Plaintiff or ask her if she wanted assistance with unloading. (Declaration of Steven L. Derby, Exhibit D, p. 169.) Barela testified that, at the time of the incident, he did not ask Plaintiff if she needed assistance because Plaintiff was not yet ready to leave the vehicle and Barela was still working on taking off the securements. (Ibid.) Barela testified that while he was completing the un-securement process of Plaintiff’s wheelchair, Plaintiff was involved in conversation with the other passenger in the vehicle and, instead of asking whether Plaintiff needed assistance at that point, Barela gave Plaintiff her space to conduct her conversation. (Declaration of Steven L. Derby, Exhibit D, p. 170.)

Finally, Plaintiff advances the Hanson declaration. But as stated above, the declaration is inadmissible.

Consequently, in viewing the evidence presented by Defendants and Plaintiff, and viewing the evidence in a light most favorable to Plaintiff, the Court finds Plaintiff has failed to meet her burden to raise triable issues of material fact as to whether SGT failed to train Barela “to proficiency” to constitute a breach of the duty to train drivers under section 37.173. Notably, Plaintiffs have not proffered any evidence to raise a triable issue as to whether SGT had trained Barela so that he knew what needed to be done to provide service in the right way, and that Barela had not forgotten what he was told in past training sessions such that he did not know what needed to be done to serve Plaintiff at the time of the incident. The Court therefore finds there are no issues of material fact as to Defendants’ Undisputed Material Facts Nos. 25-36 in support of Issue 3, and determines, as a matter of law, that SGT trained Barela “to proficiency” such that Access did not breach a mandatory public duty under sections 37.165, subdivision (f), and 37.173.

To prevail on a claim for negligent hiring, retention, and supervision, Plaintiff must prove “the employer's negligence in hiring or retaining an employee who is incompetent or unfit.” (Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1564.) “California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054 [internal citations omitted].) In Doe, the Court of Appeal explained “the cornerstone of a negligent hiring theory is the risk that the employee will act in a certain way and the employee does act in that way.” (Ibid.)

Lastly, Defendants contend Plaintiff’s fourth cause of action fails because Plaintiff cannot establish that SGT knew or should have known that Barela was unfit or improperly trained to secure and unload disabled passengers in compliance with federal and state laws. In particular, Defendants assert that SGT trained Barela, and all its drivers, “to proficiency”. In opposition, Plaintiff relies on Flores v. AutoZone W., Inc. (2008) 161 Cal.App.4th 373, to argue that Plaintiff is not required to show that SGT had knowledge of past bad acts by Barela to prevail on her negligent hiring and retention claim. As to negligent training and supervision, Plaintiff once again advances her argument that SGT failed to train Barela “to proficiency”; otherwise, Barela would not have acted as he did.

With respect to Plaintiff’s claim for negligent hiring, retention, and supervision, Defendants do not advance any evidence to demonstrate that Plaintiff cannot establish that SGT knew or should have known that hiring Barela created a risk or hazard of wheelchair passengers being injured while unloading from Access’s paratransit vehicles. Instead, Defendants reassert their arguments that SGT trained Barela “to proficiency”. (See Defendants’ Undisputed Material Facts Nos. 8-11, 18-36.) Consequently, the Court finds Defendants have failed to meet their burden of production/persuasion that there is no triable issue of material fact and that they are entitled to judgment as a matter of law on Plaintiff’s fourth cause of action for negligent entrustment, hiring, retention, training, and supervision.

In considering the competent evidence proffered by Plaintiff and Defendants, the Court finds that there are no triable issues of material fact regarding Defendants’ Undisputed Material Facts Nos. 25-36, and that it can determine, as a matter of law, that Plaintiff cannot establish that that SGT failed to train Barela “to proficiency” such that Defendants violated the ADA, the DPA, or the Unruh Act, or that Access breached a mandatory public duty under sections 37.165, subdivision (f), and 37.173.

The Court also finds Defendants have failed to meet their burden of production/persuasion to establish that there is no triable issue of material fact, and they are entitled to judgment as a matter of law, regarding Plaintiff’s fourth cause of action for negligent entrustment, hiring, retention, training, and supervision.

Therefore, the Court grants in part Defendants’ motion for summary adjudication as to the first, second, and fifth causes of action in Plaintiff’s first amended complaint, and denies in part Defendants’ motion for summary adjudication as to the fourth cause of action in the first amended complaint.

[1] The United States Department of Transportation (“DOT”) created Appendix D to explain the construction and interpretation of the provisions found in 49 Code of Federal Regulations Part 37.

DEPARTMENT	32
HEARING DATE	June 14, 2022 – Continued to August 12, 2022
CASE NUMBER	20STCV30580
MOTION	Motion for Summary Adjudication
MOVING PARTIES	Defendants Access Services and San Gabriel Transit, Inc.
OPPOSING PARTY	Plaintiff Cassandra Tang