Judge: William A. Crowfoot, Case: 19STCV35695, Date: 2023-01-12 Tentative Ruling

Case Number: 19STCV35695    Hearing Date: January 12, 2023    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 rental 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.  At the hearing on December 9, 2022, the Court issued a second tentative ruling.  The Court also continued the hearing once more to allow another round of supplemental briefing due to concerns raised by Plaintiff’s counsel regarding due process.  Plaintiff filed a second supplemental brief on December 29, 2022.  Defendant filed a second supplemental brief on January 5, 2023.

After considering all the briefing submitted by both parties, as well as the arguments made at the previous hearings, the Court issues its ruling. 

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.) 

When the evidence submitted by a moving defendant does not support judgment in the defendant's favor, a judge must deny the motion without looking at the opposing evidence, if any, submitted by the plaintiff.  (Zoran Corp. v Chen (2010) 185 Cal.App.4th 799, 805; Y.K.A. Indus., Inc. v Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 354.)  The plaintiff has no burden to establish any element of the plaintiff's case unless and until the defendant presents evidence either affirmatively negating that element (proving its absence in fact) or affirmatively showing that the plaintiff does not possess and cannot acquire evidence to prove its existence. (Aguilar, supra, 25 Cal.4th at pp. 854–855.)  The evidence of the moving party is strictly construed and the evidence of the opposing party liberally construed.  Doubts as to the propriety of granting the motion must be resolved in favor of the party resisting the motion.  (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417.) 

“Once the defendant . . . has met [its] 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.        DISCUSSION

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.) 

Plaintiff alleges that Defendant was negligent because it made scooters available to the public, “(1) without any lawful business permit or authorization from the city; (2) without inspecting and/or ensuring that renters/drivers had a valid driver’s license or instruction permit; [and] (3) without training, warning and/or educating its renters/drivers in the safe operation of its electric motorized scooters, including but not limited to, the legal prohibition against operating the electric motorized scooters on public sidewalks.”  (Compl., ¶ 45.) 

In its moving papers, Defendant essentially argued that summary judgment is warranted because Plaintiff’s allegations are false.  Defendant argued that the Complaint is contradicted by the undisputed facts because: (1) it possesses the appropriate permits and complies with all relevant requirements in the geographic areas in which it operates, (2) it requires users to consent to applicable Terms of Service, agree to abide by all relevant laws and rules, and provide a valid driver’s license, and (3) the app warns the user not to ride on the sidewalk and the Terms of Service specifically include an agreement to not operate the scooter on the sidewalk.  (Motion, 3:21-4:11.)  At oral argument and in its first supplemental brief, Defendant modified its argument and added 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. 

In its initial tentative ruling, the Court denied Defendant’s motion on the grounds that it failed to produce sufficient evidence to show that no triable issues of fact exist.  In its second (and most recent previous) tentative ruling, the Court concluded that Defendant did not owe Plaintiff a duty to protect her from the individuals who rent its scooters, in this case, Hosein.  While the Court believes that in some instances, Defendant may not owe a duty to a plaintiff, in this particular case, it finds on further reflection that Defendant did not introduce sufficient evidence in its moving papers to show that no triable issues of fact exist. 

As pointed out by Plaintiff in her second supplemental brief, the Court reached its conclusion after impermissibly relying on the evidence presented by Plaintiff.  Upon a review of Defendant’s evidence and its separate statement, the Court concludes that it must deny Defendant’s motion for summary judgment/summary adjudication. 

First, Defendant failed to produce evidence that supported its initial contention that Plaintiff’s allegations are false.  With respect to Plaintiff’s claims of negligence per se, Defendant argues that it cannot be held liable for violations of Vehicle Code sections 21223, 21224, 21228, 21229, 21230, 21235, or 22411.  As previously noted by the Court, Defendant does not address each statute specifically but argues that these statutes only regulate the conduct of the individual operator of a motorized scooter – in this case, Hosein – and not the rental company.  This characteriation is not entirely accurate because Vehicle Code section 21223 requires that every motorized scooter operated upon any highway during darkness to be equipped with certain features, such as a lamp or a reflector.  This provision does not necessarily only regulate conduct by the user of the motorized scooter, but also the provider of one.  Moreover, Defendant does not introduce any evidence showing that Plaintiff cannot establish that the scooter was not equipped with those features, or that Plaintiff cannot show that Defendant “negligently, carelessly and/or recklessly encouraged, aided, [or abetted]” Hosein’s violation of Vehicle Code section 21235(b), which 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.” 

Defendant’s argument that none of these provisions “prohibits” the operation of scooters on sidealks is also unpersuasive.  Vehicle Code section 21235(g) states “The operator of a motorized scooter shall not . . . [o]perate a motorized scooter upon a sidewalk, except as may be necessary to enter or leave adjacent property.”  Even if this language shows that riding on the sidewalk was at some point contemplated by the Legislature, Defendant does not introduce any evidence that Hosein was on the sidewalk at the time in order to enter or leave adjacent property.  A motion for summary adjudication may only be granted if it completely resolves a cause of action, an affirmative defense, a claim for damages, or an issue of duty.  (Code Civ. Proc., § 437c, subd. (f)(1).)  Because Defendant did not show that no triable issues of material fact exist with respect to theory of negligence per se, it has not met its moving burden. 

Second, even if Defendant had argued that it had no duty of care in its moving papers, instead of saving this argument for its supplemental brief, Defendant’s separate statement does not state material facts or cite to evidence supporting its position.  To be entitled to summary judgment as it relates to the element of duty of care, a defendant must set forth in its separate statement material facts that negate the plaintiff's factual allegations regarding duty and that would entitle the defendant to judgment as a matter of law.  (Eriksson v Nunnink (2011) 191 Cal.App.4th 826, 849–850.)  In Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213, 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 v. Christian (1968) 69 Cal.2d 108] to determine whether relevant policy considerations counsel limiting that duty.”  These factors include“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.)  

Defendant’s separate statement only sets forth the following: Hosein was required to present a valid driver’s license and did so, Hosein knew he was not supposed to ride on the sidewalk and was instructed not to ride on the sidewalk (UMF Nos. 4, 7-8), Hosein was not an employee or an agent (UMF No. 2), and that the operation of electric and/or motorized scooters is expressly contemplated by statute (UMF No. 12).  These undisputed facts do not address the framework articulated in Brown or the factors identified in Rowland.  Accordingly, they do not establish a prima facie case that Defendant did not owe Plaintiff a duty of care. 

Gross Negligence

To prevail on a claim for gross negligence, a plaintiff must show that the defendant was not only negligent--i.e., breached a legal duty owed to the plaintiff, which proximately caused the plaintiff to suffer injury and actual damages--but also that the negligent conduct either constituted an “extreme departure from the ordinary standard” or was committed with “a want of even scant care.”  (Wylie v. Gresch (1987) 191 Cal.App.3d 412, 416; Gore v. Bd. of Med. Quality Assurance (1980) 110 Cal.App.3d 184, 197-98 (1980).)  Similar to Defendant’s argument above, Defendant argues in its moving papers that Plaintiff cannot establish a claim for gross negligence because the principal allegations underlying the claim are false. 

Plaintiff alleges that Defendant “designed and launched an app-based rental system of electric motorized scooter-rental business that used the public rights-of-way to store, park and display their electric motorized scooter for rent by the general public, without any consultation, authorization, permits or approval whatsoever from the City of Santa Monica.”  (Compl., ¶ 37.)  Plaintiff also alleges that Defendant “did not ensure and otherwise disregarded compliance with California laws and municipal ordinances that protect public safety” and “rented their electric motorized scooters to persons without verification [sic] that each driver had valid a [sic] driver's license or instruction permit, and without any means of ensuring that their renters/drivers did not operate the electric motorized scooters on public sidewalks.”  (Ibid.)  Plaintiff also incorporates the allegations in the preceding paragraphs into her second cause of action.  (Compl., ¶ 36.) 

Defendant submits the declaration of the general manager of its Bikes & Scooters division in California, David Fairbank, who states that Defendant requires users to sign its terms of service, provides warnings to riders before they operate a scooter, instructs the riders not to ride on the sidewalk, and possesses all permits and complies with all applicable laws.  (Fairbank Decl., ¶¶ 2-4.)  As an initial matter, the Court sustains Plaintiff’s objections to Fairbank’s conclusory statement that Defendant “maintained appropriate permits and approvals.”  And even if the statement were admissible, for reasons stated above, Defendant overall presents insufficient evidence to make a prima facie showing that no triable issues of material fact exist.  For example, a reasonable factfinder could determine that Defendant’s warnings were inadequate and that Defendant should have prevented riders from operating their scooters on the sidewalk by using tracking technology and rendering them inoperable.  (See Compl., ¶ 31.)

Moreover, Defendant has not shifted the burden of production to Plaintiff by way of Plaintiff’s discovery responses.  In fact, Defendant’s compendium of evidence does not even include Plaintiff’s discovery responses.  (Motion, 10:6-9.)  Although Defendant submitted the copies of Plaintiff’s objection-only discovery responses on reply as attachments to the supplemental declaration of Dean A. Martoccia, these responses contain objections and do not prove that Plaintiff “has no evidence.”  If Defendant took issue with Plaintiff’s objections, its remedy was to move for an order compelling a further response.  (Code Civ. Proc., § 2030.300, subd. (a)(3).)   

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.) 

Relying only on the conclusory statement of David Fairbank, Defendant argues that its operations are lawful and therefore, cannot be deemed a nuisance or a cause of Plaintiff’s harm.  Because the Court sustains Plaintiff’s objection to Fairbank’s assertion, this argument is unavailing. 

Defendant additionally contends that making scooters available is not an activity that causes significant and unreasonable harm.  (People v. ConAgra Grocery Prods. Co. (2017) 17 Cal.App.5th, 51 112 [a claimed interference is “substantial” if it causes significant harm and is “unreasonable” if its social utility is outweighed by the gravity of the harm inflicted].)  Defendant broadly asserts that “[m]aking scooters available to the public within the confines of applicable law and local requirements, [sic] cannot be an activity that causes significant and unreasonable harm to the public.”  (Motion, 12:5-7.)  Defendant provides no evidence to support this sweeping statement. 

Last, Defendant argues that Plaintiff has not shown that her injury is “different in kind, not just degree.”  It bears repeating that the plaintiff has no burden to establish any element of her case unless and until the defendant presents evidence either affirmatively negating that element (proving its absence in fact) or affirmatively showing that the plaintiff does not possess and cannot acquire evidence to prove its existence. (Aguilar, supra, 25 Cal.4th at pp. 854–855.)  Here, Plaintiff alleges she was physically struck by a user riding a scooter on the sidewalk.  It is Defendant’s burden to show that the harm she encountered is not different in kind by stating the facts supporting this proposition in its separate statement; Defendant has failed to do so. 

VI.     CONCLUSION

          In light of the foregoing, Defendant’s motion for summary judgment/summary adjudication is DENIED.

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.