Judge: William A. Crowfoot, Case: 19STCV35695, Date: 2022-12-09 Tentative Ruling

Case Number: 19STCV35695    Hearing Date: December 9, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On October 7, 2019, plaintiff Marthe De La Torre (“Plaintiff”) filed this action against defendants Lyft, Inc. (“Defendant”) and Erjaei Seyed Hosein (“Hosein”) asserting causes of action for negligence, gross negligence, and public nuisance.  Plaintiff alleges that she was a pedestrian on the sidewalk along Santa Monica Boulevard east of Barrington Avenue in the City of Los Angeles on December 17, 2018, when she was struck by Hosein, who was riding Defendant’s motorized scooter.  (Compl., ¶¶ 1, 10.) 

On April 1, 2022, Defendant filed this motion for summary judgment or, in the alternative, summary adjudication.  Defendant contends Plaintiff cannot establish one or more of the essential elements of her three causes of action. 

On October 21, 2022, Plaintiff filed her opposition brief and supporting papers.

On October 28, 2022, Defendant filed its reply papers.  

On November 4, 2022, the Court continued the hearing and ordered the parties to submit supplemental briefs by November 28, 2022, summarizing the arguments made at oral argument. 

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 facie 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).)  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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 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

Objection No. 1: Overruled.

Objection No. 2: Overruled. 

Defendant’s Evidentiary Objections

The “material” that Defendant objects to are Fact Nos. 15-28 from Plaintiff’s separate statement of additional fact.  For each objection, Defendant repeats the text of Plaintiff’s additional material fact and includes a citation to the evidence that supports it.  The grounds for the objection also appear to challenge whether the cited evidence supports the fact, instead of whether the evidence is itself admissible. 

A Court must rule on individual objections only when they are timely and in the proper form.  (Demps v. San Francisco Housing Authority (2007) 149 Cal. App. 4th 564, 578.)  Defendant’s objections do not comply with the requirements of CRC 3.1354 because the facts objected to are not “evidence” and Defendant fails to adhere to CRC 3.1354 by not setting forth the objectionable statement or material which it actually finds objectionable.  For this reason alone, the Court has discretion to overrule Defendant’s objections.

Failing to cite the material actually objected to has made ruling on Defendant’s objections considerably more difficult.  Nevertheless, the Court exercises its discretion and will rule on the objections made to the cited exhibits.  The rulings on each objection will be numbered based on the corresponding ultimate fact which is cited. 

Objection Nos. 15: Sustained.

Objection Nos. 16-28: Overruled.

IV.         DISCUSSION

Negligence and Gross Negligence

“The elements of a cause of action for negligence are commonly stated as (1) a legal duty to use due care; (2) a breach of that duty; (3) a reasonably close causal connection between that breach and the resulting injury; and (4) actual loss or damage.”  (Wylie v. Gresch (1987) 191 Cal. App. 3d 412, 416.)  To prevail on a claim of gross negligence, the plaintiff must also prove the negligent conduct constituted an “extreme departure from the ordinary standard” or was committed with “a want of even scant care.”  (Ibid.)  At oral argument and in its supplemental brief, Defendant clarifies its grounds for summary judgment, which is that Plaintiff cannot establish her causes of action for negligence or gross negligence because she cannot show that Defendant owed her a duty of care, breached that duty, or that there was a sufficiently close causal connection between that breach and her alleged injuries. 

Plaintiff claims that Defendant owed her a duty of care to prevent Hosein from riding his scooter on the sidewalk and colliding with her and that Defendant breached that duty by: (1) failing to instruct or warn their renters/drivers that the scooters cannot be operated on public sidewalks, (2) not  “ensuring that [its] renters/drivers did not operate the electric motorized scooters on public sidewalks,” and (3) “negligently, carelessly and/or recklessly encourag[ing]. . .  [Hosein’s violations of the Vehicle Code.]”  (Compl., ¶¶ 27, 32, 37.)  Although the Complaint includes  allegations that Defendant did not check if Hosein had a valid driver’s license, as the Court noted in its prior tentative ruling, Plaintiff appears to have withdrawn that claim.  (Compl., ¶¶ 28-29.) 

Plaintiff also alleges Defendant “actively created an unreasonable risk of harm by encouraging renters to operate the scooters on public sidewalks, allowing renters to park the scooters on sidewalks, and displaying the scooters for rent on public sidewalks.” (Compl., ¶ 26.)  However, for the purposes of her claim, it is not clear how Defendant’s alleged encouragement of a parking or displaying the scooters on the sidewalk would be relevant to her injury. 

The issues presented in the Complaint can be distilled into the following inquiry: Did Defendant owe Plaintiff a duty to protect her from the harm caused by the individuals renting its scooters?  This inquiry about duty was obscured by Defendant’s disorganized moving papers and insistence that Plaintiff’s allegations are false .  However, after considering the arguments made and evidence submitted by both parties, the Court concludes, as a matter of law, that no such duty exists. 

Civil Code section 1714 states, in relevant part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”  (Civ. Code, § 1714.)  The factors articulated in Rowland v. Christian (1968) 69 Cal.2d 108 (“Rowland”) serve as a method of determining whether public policy supports a departure from this statute.  The Rowland factors are “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.”  (Rowland, supra, 69 Cal.2d at p. 113.)  

Generally, a person has no duty to control the conduct of third parties. (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 533.)  In Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213 (“Brown”), the California Supreme Court held that the applicable framework for determining whether a defendant has a duty to protect a plaintiff from harm caused by a third party is a two-step inquiry: “First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect.  Second, if so, the court must consult the factors described in Rowland to determine whether relevant policy considerations counsel limiting that duty.”   

As a preliminary matter, the Court notes that there are no allegations that a special relationship exists between Plaintiff and Defendant, and no evidence that a special relationship exists between Defendant and Hosein, especially given the declaration from Defendant’s General Manager, David Fairbanks, that Hosein was not and never was an employee or agent of Defendant.  Instead, Plaintiff’s theory of the case appears to be that by offering these scooters for rent and allegedly encouraging renters to use them on sidewalks, Defendant has created a set of circumstances giving rise to a duty to protect.  

The Court finds this unpersuasive for several reasons.  First, it is undisputed that Defendant has the apppropriate permits for its business, so providing the scooters, in and of itself, is not an adequate ground for finding “misfeasance.”  (See Plaintiff’s Separate Statement, Response to UMF No. 3.)  Second, there is no evidence that Defendant “encourages” its users to illegally ride the scooters on the sidewalk.  Both Defendant and Plaintiff submit evidence that scooter users are required to consent to Terms of Service which include agreeing to abide by all relevant laws and rules, and that Defendant provides in-App warnings to users before they ride a scooter, including express instructions not to ride on the sidewalk.  (Fairbanks Decl., ¶¶ 2-5, Ogrin Decl., Ex. 1, Fairbanks Depo. at pp. 121:9-123:7.)  Hosein also admitted in his deposition that he understood he was supposed to park the scooter on the sidewalk, but was not allowed to ride the scooter on the sidewalk.  (Martoccia Decl., Ex. 4, 64:9-17.)  In fact, Plaintiff even offers as an additional material fact that Hosein rode the scooter on the street, and rode onto the sidewalk only in order to get to the front door of his destination and park his scooter.  (Plaintiff’s AMF No. 23-24.)  This is permitted by Vehicle Code section 21235, which provides that  an individual may operate a motorized scooter on a sidewalk “as may be necessary to enter or leave adjacent property.”  Therefore, there is no evidence that Hosein was illegally riding the scooter on the sidewalk. 

Instead, in her opposition brief, Plaintiff’s main argument appears to be that Defendant has an affirmative duty to protect her because it “unlocked” the scooter for Hosein to use while the scooter was parked on Santa Monica Boulevard.  Plaintiff contends that the scooter was not supposed to be operated on Santa Monica Boulevard because Vehicle Code section 21235(b) prohibits the operation of a motorized scooter on a highway with a speed limit in excess of 25 miles per hour unless the motorized scooter is operated within a Class II or Class IV bikeway”, and Hosein testified that the speed limit for the street he was riding on, Santa Monica Boulevard, was over 25 mph and has no bike lane.  (Plaintiff’s Additional Material Fact (“AMF”) No. 17.) 

Even assuming, without deciding, that “unlocking” the scooter was an act of misfeasance and it was illegal for Hosein to ride on Santa Monica Boulevard or the sidewalk, the Court finds that the Rowland factors cut against imposing a duty of care on Defendant to protect Plaintiff from Hosein’s conduct.  Plaintiff suggests that Defendants should be able to track the location of their scooters and disable them if they are being illegally ridden on the sidewalk or on forbidden highways in violation of Vehicle Code section 21235(b).  This duty would impose a significant burden on Defendant, who would be charged with creating a system capable of determining whether a user has been on the sidewalk for longer than necessary, i.e., whether the rider has had sufficient time to enter or leave any adjacent property, and defeat the purpose of providing the scooters, which is to increase the public’s options for first and last mile transportation, which replaces car and ride-share trips.  (Ogrin Decl., Ex. 1, Fairbanks Depo. at 86:4-14.)  The closeness of the connection between providing the scooter and Hosein’s accident with Plaintiff is too attenuated and the moral blame attached to Defendant’s conduct is low. 

The Court further notes that no analogous duty exists in the rental car context.  (Def.’s Supp. Brief, 3:16-4:5.) A rental car company is not (and should not be) required to disable its vehicles from being driven in a manner that violates the Vehicle Code or other laws.  Instead, a rental car company’s duty to minimize risk to third-parties is limited to ensuring that the license is facially valid and there are no signs of unfitness to drive.  (Flores v. Enterprise Rent-A-Car Co. (2010) 188 Cal.App.4th 1055, 1059.) 

Because the Court finds that Defendant does not owe Plaintiff a duty as a matter of law, it does not need to discuss whether Plaintiff can establish the elements of breach or causation. 

Public Nuisance

To prevail on a claim for public nuisance, a plaintiff must prove that: (1) the conduct complained of constitutes a nuisance, (2) the conduct interferes with the interests of the public, (3) the interference is “substantial” and “unreasonable,” and (4) the injury suffered by the plaintiff as a result of the nuisance is somehow special from the general effect of the conduct on the public.  (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1105.)  Nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.  (Civ. Code, § 3482.) 

Defendant argues that it has only engaged in lawful conduct and therefore, cannot be deemed a nuisance.  Vehicle Code section 21220 demonstrates the Legislature’s intent to promote the use of alternative low-emission or no-emission transportation, specifically motorized scooters.  Plaintiff has not introduced any evidence that the scooters are nonetheless interferes with the public interest in a substantial and unreasonable manner. 

Additionally, Plaintiff has not identified any peculiar risk of harm from the scooters which is different from the risks faced by the general public.  Plaintiff’s risk of being harmed by a scooter on the sidewalk is experienced equally by all members of the public.  As Defendant explains further in its supplemental brief, “[a] risk or hazard borne out is not different in kind from the risk itself, a reaction to the risk, or an attempt to avoid the risk.  (Def.’s Supp. Brief, 9:13-23.) 

VI.     CONCLUSION

          In light of the foregoing, the Motion for summary judgment is GRANTED.

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.