defendant mattnew kittells memorandum in opposition to plaintiffs moti

Cal. Super. - 1st Dist.October 8, 2021

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 1 - DEFENDANT MATTHEW KITTELL’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION Mark S. Perelman - 120961 MPerelman@mpbf.com Jackson L. Stogner - 328327 JStogner@mpbf.com MURPHY, PEARSON, BRADLEY & FEENEY 580 California Street, Suite 1100 San Francisco, CA 94104-1001 Telephone: (415) 788-1900 Facsimile: (415) 393-8087 Attorneys for Defendant MATTHEW KITTELL SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO LAURANNE LEE and MARTIN GANAPOLER, Plaintiffs, v. AHMAD HAMID, MATTHEW KITTELL, NORA ALLIBHAI and DOES 1-20, Defendants. Case No.: CGC-20-584431 DEFENDANT MATTHEW KITTELL’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION Date: July 19, 2021 Time: 9:30 a.m. Dept.: 302 DOF: May 12, 2020 Trial Date: September 7, 2021 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 07/02/2021 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page - 2 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION I. INTRODUCTION ....................................................................................................................... 5 II. FACTUAL BACKGROUND ...................................................................................................... 5 A. Parties. .............................................................................................................................. 5 B. The Incident. .................................................................................................................... 5 1. Plaintiff Lauranne Lee’s Version of the Incident. ................................................ 7 2. Defendant Matthew Kittell’s Version of the Incident. ......................................... 7 III. LEGAL ARGUMENT ................................................................................................................. 8 A. The Legal Standard for Summary Adjudication. ............................................................. 8 B. The Plaintiff’s Burden as the Moving Party, and the Shift of the Burden to Defendant. ........................................................................................................................ 8 C. Plaintiffs’ Attempt to Summarily Adjudicate Liability Without Damages Must Fail. .................................................................................................................................. 9 D. Plaintiff’s Separate Statement of Ultimate Facts is Insufficient, and thus the Motion Should Be Denied. ............................................................................................. 11 E. Regardless of Plaintiffs’ Failure to Discuss Damages, Their Motion Fails to Present Undisputed Facts. .............................................................................................. 12 1. Plaintiffs Have Not Established Negligence Per Se. .......................................... 12 2. Plaintiffs Also Have Not Established Negligence. ............................................ 13 F. Plaintiffs’ Motion Says Nothing of Ms. Lee’s Comparative Fault. ............................... 15 1. If Ms. Lee Was in the Bike Lane, She was There Impermissibly, and It Contributed to the Accident. .............................................................................. 15 2. If Ms. Lee Was in the Roadway, Her Actions Contributed to the Accident. ............................................................................................................ 15 3. Ms. Lee’s Contribution to the Incident Presents a Triable Issue of Material Fact. ..................................................................................................... 16 IV. CONCLUSION .......................................................................................................................... 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page - 3 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION CASES Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 ....................................................................................................................... 8, 9 Allen v. Smith (2002) 94 Cal.App.4th 1270 ................................................................................................................. 9 Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184 ................................................................................................................. 16 City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228 ............................................................................................................. 12 Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084 ......................................................................................................... 10, 11 Ducksworth v. Tri-Modal Distribution Services (2020) 47 Cal.App.5th 532 ................................................................................................................. 11 Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870 ................................................................................................................... 9 La Fleur v. Hernandez (1948) 84 Cal.App.2d 569................................................................................................................... 16 Maxwell v. Colburn (1980) 105 Cal.App.3d 180................................................................................................................. 16 Melton v. Boustred (2010) 183 Cal.App.4th 521 ............................................................................................................... 10 Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703................................................................................................................. 13 Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226 ......................................................................................................... 10, 11 Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962 .......................................................................................................................... 13 San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.4th 308 ....................................................................................................................... 12 Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208 ............................................................................................................... 12 United Community Church v. Garcin (1991) 231 Cal.App.3d 327................................................................................................................. 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page - 4 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION STATUTES Code of Civil Procedure 437c ................................................................................................................................................. 5, 17 § 437c(b)(1)..................................................................................................................................... 9, 11 § 437c(c) ........................................................................................................................................... 8, 9 § 437c(f)(1) ............................................................................................................................... 8, 10, 11 § 437c(f)(2) ........................................................................................................................................... 8 Vehicle Code § 21208(a) ........................................................................................................................................... 14 § 22517 .......................................................................................................................................... 12, 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION I. INTRODUCTION This case is about an accident in which a bicycle collided with a car door. The essential facts of how precisely this accident occurred are in dispute, rendering this motion inappropriate. How the accident happened, where the accident happened, and who caused the accident are all in dispute. These questions must be answered by a jury. Moreover, Plaintiffs’ attempt to use summary adjudication, as provided for in Section 437c, is improper, as Plaintiffs’ motion fails to address damages as one of the elements necessary to establish negligence or negligence per se. Plaintiffs have brought this motion not just without the requisite factual support, but also without a legal basis. Plaintiffs fail to acknowledge that critical facts in this case are in dispute. Plaintiffs have one version of how this accident occurred, which in itself has internal inconsistencies. Defendant Matthew Kittell has a different version of how this accident occurred. These different versions highlight disputed facts concerning the reasonableness of each parties’ actions, causation, and comparative fault. These disputed facts must be evaluated by a jury in order to determine how judgment should be entered in these claims of negligence and negligence per se. In addition, the ultimate issue of whether the Defendants’ actions breached the duty of care, and whether Plaintiff’s actions constituted comparative fault, are questions of fact that must be determined by a jury. Finally, there is no statutory basis for bringing a motion to eliminate some, but not all, of the essential elements for judgment. II. FACTUAL BACKGROUND A. Parties. Defendant Ahmad Hamid was the driver of the automobile involved in this incident. Defendant Matthew Kittell was one of the passengers in said automobile. Plaintiff Lauranne Lee was riding the bicycle that was involved in this collision. Plaintiff Martin Ganapoler is the husband of Plaintiff Lauranne Lee. B. The Incident. The incident took place on Mason Street, in the Crissy Field area of San Francisco. The street has two lanes, one in each direction. The north border of the westbound lane is delineated by a solid white line. Approximately 12 to 18 inches north of that white line is a border created by black rubber 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 6 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION bumpers or curbs, spaced at regular intervals. The space between the white line and the bumpers appears to act like a kind of shoulder between the roadway and a two-lane bike lane, just on the other side of the bumpers. Further north is a separate walking path. Indeed, the aforementioned broken line created by the black bumpers serves as the edge of the bike lane, which itself has two lanes, one for each direction. The eastbound direction of the bike lane is closest to the roadway, and the westbound direction of the bike lane is farther from the roadway. The westbound direction of the bike lane is adjacent to the walking path. The satellite image below, obtained from Google Maps, depicts the location described above, with markers added for convenience. The yellow arrows indicate the direction of travel for bikers in the bike lane. The red square identifies that signage on the pavement that indicates the space intended for pedestrians. The blue square identifies one of the aforementioned black rubber curbs, and its proximity to the white line that delineates the roadway. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 7 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION The incident unfolded on the north side of the street, in front of the House of Air Trampoline Park, which is located on the south side of Mason Street. The above description of the features of that roadway are essential to this discussion. There are two versions of this incident. There is the version presented by the Plaintiffs in this motion, which has some internal inconsistencies. And there is the version by Matthew Kittell, which is consistent with the police report of this incident, which is attached as Exhibit 1 to Defendant Kittell’s Index of Evidence. Each are summarized in turn. 1. Plaintiff Lauranne Lee’s Version of the Incident. Plaintiffs provide little specific detail about how the accident occurred in their memorandum and Separate Statement supporting this motion. Indeed, the Separate Statement does not provide specific facts that describe the incident itself. Plaintiff does not provide a list of facts concerning how the accident occurred because the facts concerning how the accident occurred are in dispute. While Plaintiffs’ Separate Statement does not provide any significant undisputed facts, the Separate Statement does cite Ms. Lee’s declaration. Her declaration briefly summarizes the incident in relevant part as follows. Ms. Lee was riding at approximately 7 miles per hour, on the right side of the roadway. She saw Mr. Hamid’s vehicle stop, but did not herself decide to stop or even slow down; she continued passing the stopped vehicle on the right, while in the roadway; the front passenger door opened as she was passing, leading to the collision. 2. Defendant Matthew Kittell’s Version of the Incident. Mr. Kittell’s version of the incident differs from Ms. Lee’s in two major respects: (1) where the car was when the door opened; and (2) where the bike was when the door opened. While Plaintiffs’ Separate Statement does not specifically address it, Ms. Lee’s declaration seems to imply that Mr. Hamid’s vehicle stopped in the middle of the westbound lane of the roadway. (Declaration of Lauranne Lee, ¶ 8.) This fact is disputed. Mr. Kittell stated that the vehicle pulled towards the edge of the roadway. (Matthew Kittell’s Statement of Additional Material Facts in Dispute (“AMF”) ¶ 4.) Again, Plaintiffs’ Separate Statement does not specifically state the issue, but Ms. Lee’s 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 8 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION declaration states that she was riding her bicycle on the right side of the roadway. This fact is disputed. Mr. Kittell’s declaration states that Ms. Lee was riding westbound in the left side of the eastbound bike lane. (AMF ¶ 6.) Mr. Kittell’s position is further supported by the police report concerning this collision. The relevant portion of that report, prepared by Officer Andrew Ewing, states, “I asked Lee what happened. She stated she was traveling west along Mason in the bike lane and she saw a white Toyota Prius stop on the road infront (sic) of her.” (AMF ¶ 6.) Finally, Ms. Lee was asked about this paragraph of the police report in her deposition. She was asked to read the paragraph beginning with “I asked Lee what happened.” She was then asked if the paragraph was an accurate description of what happened, and whether there was anything in it with which she disagreed. She stated that it was accurate, and chose only to correct one different provision of the paragraph, thus leaving intact the statement that Ms. Lee had been riding in the bike lane. As such, there is ample evidence for the assertion that Ms. Lee was in fact riding in the wrong side of the bike lane at the time of the collision. III. LEGAL ARGUMENT A. The Legal Standard for Summary Adjudication. A motion for summary adjudication is properly granted in limited circumstances only. As relevant here, a motion for summary adjudication is properly granted where the moving party is able to completely dispose of an entire cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Code Civ. Proc. § 437c(f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc. § 437c(f)(2).) In ruling on the motion, the court must consider all of the evidence, and all of the inferences that can reasonably be drawn from the evidence. (Code Civ. Proc. § 437c(c).) The evidence, and inferences drawn from the evidence, must be viewed “in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) B. The Plaintiff’s Burden as the Moving Party, and the Shift of the Burden to Defendant. The party moving for summary adjudication bears the burden of persuasion that there is no triable issue of material fact and that she is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “There is a triable issue of material fact if, and only if, the evidence 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 9 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION 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, 25 Cal.4th at 850.) A plaintiff has met her burden if she has proven each element of the cause of action entitling her to judgment on that cause of action. (Aguilar, 25 Cal.4th at 849.) “In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc. § 437c(c).) The moving party’s separate statement must contain all of the material facts in support of summary judgment. (Code Civ. Proc. § 437c(b)(1); Allen v. Smith (2002) 94 Cal.App.4th 1270, 1282 (“opposing parties are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate statement”).) The moving party “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 . . . 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, 25 Cal.4th at 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Kids’ Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.) While the Plaintiff can cause a shift of the burden of production, there is no such shift of the burden of persuasion. (Aguilar, 25 Cal.4th at 850.) Where, as here, the standard of proof at trial is preponderance of the evidence, in order for a plaintiff to meet her burden of persuasion and production, she “must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not . . . .” (Aguilar, 25 Cal.4th at 851.) In other words, if a plaintiff has not produced evidence that would entirely preclude any reasonable trier of fact from finding against the plaintiff, then the motion for summary adjudication must be denied. C. Plaintiffs’ Attempt to Summarily Adjudicate Liability Without Damages Must Fail. Plaintiffs have filed this motion for summary adjudication specifically and expressly as to liability. Indeed, Plaintiffs stated, “[t]he sole issue that should remain for the jury is the amount of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION Plaintiffs’ damages.” (Plaintiffs’ Memorandum of Points and Authorities in Support of Motion for Summary Adjudication (“Plaintiff’s Motion”), 1:7-8.) By statute, Plaintiff may not leave damages as a sole issue for the jury. The Code of Civil Procedure requires that a motion for summary adjudication disposes of an entire cause of action, including damages. “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc. § 437c(f)(1).) “The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) By the clear language of Plaintiffs’ motion, Plaintiffs are not seeking to dispose of an issue of duty, they are not seeking to dispose of a claim for damages, and they are not seeking to dispose of an affirmative defense. They are seeking to dispose of three of the four elements that they must prove, but not the fourth. This motion does not fit into any of the statutorily permitted grounds for summary adjudication. Plaintiffs may attempt to argue that the existence of damages is implied in their motion, and in that way they have moved for summary adjudication as to an entire cause of action. However, to the extent that is Plaintiffs’ argument, this argument fails. This issue has already been directly addressed by the Court of Appeal. May a plaintiff seek summary adjudication of liability only, leaving the resolution of damages to a later trial? The statutory language mandates the question be answered in the negative. A plaintiff can obtain summary adjudication of a cause of action only by proving “each element of the cause of action entitling the party to judgment on that cause of action.” (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241.) That court further explains the purpose of the statute, which was to “stop the practice of adjudication of facts or adjudication of issues that do not completely dispose of a cause of action or a defense.” (Paramount, 227 Cal.App.4th at 242 [citation and internal quotation marks omitted].) “A determination of liability alone does not completely dispose of the cause of action.” (Paramount, 227 Cal.App.4th at 242 [emphasis added].) The court in Paramount also relied on Department of Industrial Relations v. UI Video Stores, Inc., which also plainly holds that summary adjudication is not proper without a disposition on the issue of damages: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION Appellant requests this court to order the trial court to enter summary judgment in appellant’s favor. The trial court had apparently ordered appellant to move for summary judgment on the issue of Blockbuster’s liability, with damages to be determined in a later accounting proceeding. Although we have determined that Blockbuster is liable to appellant, Code of Civil Procedure section 437c make no provision for a partial summary judgment as to liability. Even summary adjudication may be granted only in limited circumstances. (Code Civ. Proc., § 437c, subd. (f)(1).) Because issues of the calculation of damages apparently remain to be determined, it is not appropriate to grant summary judgment for appellant at this time. (Department of Industrial Relations v. UI Video Stores, Inc. (1997) 55 Cal.App.4th 1084, 1097.) To the extent that the above excerpt does not clearly apply to summary adjudication, the court in Paramount clarified that, in fact, the reasoning in Department of Industrial Relations does apply to the issue of summary adjudication. [T]he governing statute provides that a plaintiff can only obtain summary adjudication of a cause of action if the plaintiff establishes each element of the cause of action entitling it to judgment on that cause of action. The court specifically held that “[a] decision on the issue of liability against the party on whom liability is sought to be imposed does not result in a judgment until the issue of damages is resolved.” (Paramount, 227 Cal.App.4th at 243 (quoting Department of Industrial Relations, 55 Cal.App.4th at p. 1097) (emphasis added).) Plaintiffs have sought to dispose of the issue of liability without reaching the issue of damages. But the law on this is clear: summary adjudication cannot stand. On that ground alone, Plaintiffs’ motion should be denied. D. Plaintiff’s Separate Statement of Ultimate Facts is Insufficient, and thus the Motion Should Be Denied. A motion for summary adjudication must include a separate statement setting forth all of the material facts that are needed to rule on the motion. (Code Civ. Proc. § 437c(b)(1).) “The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denying the motion. The purpose of the separate statement “is to identify and to isolate factual issues and thus to facilitate decisionmaking by trial judges.” (Ducksworth v. Tri-Modal Distribution Services (2020) 47 Cal.App.5th 532, 540.) “This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist. Both the court and the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION opposing party are entitled to have all the facts upon which the moving party bases its motion plainly set forth in the separate statement.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [superseded by statute on other grounds]; see also City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, n.4 [where the court did not consider additional evidence presented in support of the motion because it was not incorporated into the separate statement].) Here, Plaintiffs’ Separate Statement is inadequate. The facts that are provided come in two categories: (1) facts that, while undisputed, fail to evidence a cause of action for which relief can be granted; and (2) wholly conclusory statements that completely lack specific factual support. The latter of these two are perhaps included so as to remedy the lackluster nature of the other facts, while also attempting to avoid careful consideration of those specific illustrative facts that are missing. In other words, perhaps the final elements of the claim were included in such a conclusory matter because any factual description of those conclusions reveals the dispute that lies within it. Some cases have held that the consideration of evidence omitted from the moving party’s separate statement is within the trial court’s discretion. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.4th 308, 310-311.) However, even if the court did wish to exercise discretion in this regard, consideration of those overlooked facts reveal that they are all disputed. In either case, the court has the authority to deny this motion on the basis of the insufficient Separate Statement alone. E. Regardless of Plaintiffs’ Failure to Discuss Damages, Their Motion Fails to Present Undisputed Facts. 1. Plaintiffs Have Not Established Negligence Per Se. Plaintiffs failed to establish the elements of negligence per se. Under the negligence per se doctrine, negligence is presumed only if four elements are established: (1) the defendant violated a statute; (2) the violation proximately caused injury to person or property; (3) the injury resulted from an occurrence of the nature of which the statute was designed to prevent; and (4) the person suffering the injury to her person or property was one of the class of persons for whose protection the statute was adopted. (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208, 218.) The first two elements are questions of fact, while the latter two are questions of law. (Id.) Vehicle Code section 22517 reads: “No person shall open the door of a vehicle on the side 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION available to moving traffic unless it is reasonably safe to do so and can be done without interfering with the movement of such traffic . . . .” As discussed above, the facts that might otherwise establish negligence per se are disputed. Where Mr. Kittell’s door was opened is disputed. Plaintiffs contend that the door was opened into the roadway. However, Mr. Kittell has disputed this, indicating that the door was opened outside of the roadway and into the bike lane. The collision occurred in a part of the bike lane that Ms. Lee was not entitled to be in. The above indicates first and foremost that Mr. Kittell did not violate Vehicle Code section 22517. This alone is enough to defeat the negligence per se cause of action, as the first two elements depend on a violation of the statute. Furthermore, the statute is necessarily designed to protect those people who are moving in a space that is lawfully available to moving traffic; the unlawful use of the space by a biker does render the space “available to moving traffic” under the law any more than an automobile using that bike lane would. In other words, the statute was not adopted to prevent collisions caused by the improper use of a bike lane, and it was not adopted to protect bikers using the bike lane inappropriately. As such, the third and fourth elements of the negligence per se cause of action are not met either. 2. Plaintiffs Also Have Not Established Negligence. Plaintiffs failed to show sufficient material facts are undisputed. Some of the facts as presented are in fact undisputed. That Ms. Lee was riding a bicycle; that Mr. Hamid drove his vehicle past Ms. Lee on Mason Street; that a collision occurred between Ms. Lee and the front passenger door of Mr. Hamid’s vehicle opened by Mr. Kittell. However, multiple crucial facts are disputed. The exact place Ms. Lee was riding her bike is disputed. The manner in which Mr. Hamid brought his vehicle to a stop is disputed. Where Mr. Kittell opened the vehicle door is disputed. Finally, and most importantly, whether the actions of the Defendants constituted a breach of their respective duties is disputed. “In general, the issue of a defendant’s negligence presents a question of fact for the jury.” (Osborn v. Hertz Corp. (1988) 205 Cal.App.3d 703, 712, quoting Perez v. Van Groningen & Sons, Inc. (1986) 41 Cal.3d 962, 971.) This determination becomes a matter of law only if a reasonably jury following the law could draw only one conclusion from the evidence. (Id.) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION Here, the circumstances are a classic example of a question for a jury. Has a passenger exiting a vehicle on the side away from traffic, who takes care to look for pedestrian or bicycle traffic in the bicycle lane that is only available to users who are traveling eastbound, breached a duty of care owed to a westbound biker by failing to see her coming from behind him. Even if it was undisputed that Ms. Lee was riding on the far right side of the roadway (though it is disputed), could a reasonable person fail to see a biker approaching on the shoulder of the roadway from behind him as he got out of a vehicle on the side that is not available to traffic? This question is a classic question of breach for a jury. Plaintiffs, in a conclusory manner, argue that Mr. Kittell “should have looked over his shoulder to see if there were any bicycles coming before he opened his door.” (Plaintiff’s Motion, 5:22-23.) But should he have looked over his shoulder? Does a reasonable person always do this when exiting a vehicle away from traffic? Are bikers typically passing stopped vehicles on the right? Are bikers typically riding head-on towards bikers in a bike lane? All of these questions have to be answered by a trier of fact. These questions cannot be answered as a matter of law on a motion for summary adjudication. To put it another way: does a reasonable passenger exiting a vehicle away from traffic always expect a biker to be riding in an illegal space directly next to his door? As discussed previously, Ms. Lee was either riding on the shoulder of the roadway (as asserted by Plaintiffs) or in the neighboring bike lane intended for bike traffic in the opposite direction (as shown in Mr. Kittell’s declaration and the police report). As is plain from the signage in the bike path, the lane of the bike path closest to the roadway is meant for eastbound bikers. A westbound biker in that space would clearly be out of place. Furthermore, the law specifically prohibited Ms. Lee’s presence on the roadway. “Whenever a bicycle lane has been established on a roadway pursuant to Section 21207, any person operating a bicycle upon the roadway at a speed less than the normal speed of traffic moving in the same direction at that time shall ride within the bicycle lane . . . .”1 (Veh. Code § 21208(a).) By Ms. Lee’s own testimony, she was travelling 7 miles per hour - 18 miles per hour below the posted speed limit. With the bike lane 1 This statute provides four situations in which such a biker may leave the bike lane, none of which apply here: (1) “When overtaking and passing another bicycle, vehicle, or pedestrian within the lane or about to enter the lane if the overtaking and passing cannot be done safely within the lane” (emphasis added); (2) when preparing for a left turn; (3) when reasonably necessary to avoid debris or other hazardous conditions; and (4) when approaching a place where a right turn is authorized. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 15 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION immediately to the right of the roadway, the law required Ms. Lee to ride in it, so long as she was traveling 7 miles per hour. With that being the case, does a reasonable person always expect a biker to be riding her bike in violation of the vehicle code, dangerously close to his door that he is opening away from moving traffic? However the question is framed, it is unequivocally a question that must be answered by a trier of fact. For that reason, Plaintiffs’ motion must be denied. F. Plaintiffs’ Motion Says Nothing of Ms. Lee’s Comparative Fault. As briefly explained above, despite Plaintiffs’ completely conclusory statement otherwise (Plaintiffs’ Motion, 6:18-23), Ms. Lee contributed to this accident. 1. If Ms. Lee Was in the Bike Lane, She was There Impermissibly, and It Contributed to the Accident. It is a matter of dispute as to where precisely Ms. Lee was riding her bike at the time of the collision. In her declaration, Ms. Lee stated that she was riding on the roadway. However, at the scene, Ms. Lee told the reporting officer that she was riding in the bike lane at the moment of the collision. In her deposition, when she was asked if she wanted to correct any of the information in the police report as recorded by the officer, she did not correct his report that she told him that she was in the bike lane. Furthermore, Defendant Kittell stated that Ms. Lee was riding in the bike lane. If this is the case, as discussed above, Ms. Lee plainly contributed to the accident. The signage makes quite clear that the lane closest to the roadway is designated for eastbound travelers. When Mr. Kittell took care to look for pedestrians and bikers, he looked in the direction that a reasonable person would expect them to be travelling from. (AMF, ¶ 5.) Travelling westbound in that space is dangerous. There is a risk of collision with oncoming bikers, and, as here, there is a risk that those on the roadway will not be aware of the westbound biker’s presence. If Ms. Lee was travelling in this space at the moment of collision, then she contributed to the accident. To conclusively say otherwise is erroneous. 2. If Ms. Lee Was in the Roadway, Her Actions Contributed to the Accident. Even if Ms. Lee was in the roadway (a contention for which, as discussed above, there is ample contradictory evidence), then she was still at least partly at fault. Just as a driver would be expected to 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION stop for a vehicle stopped in front of her, so too is a biker expected to react reasonably to a vehicle stopped in front of her on the roadway. As stated in Plaintiffs’ motion, “Ms. Lee saw Mr. Hamid’s vehicle stop, but did not see anything in the car that would have provided her notice that anything was amiss.” (Plaintiffs’ Motion, 3:1-2.) But the very fact that the vehicle was stopped is in fact such notice. No parties - drivers or bikers - are permitted to simply ignore the behavior of the vehicles around them, particularly those vehicles in front of them. Just as with drivers, bicyclists have a duty to exercise the care of a reasonable and prudent person in the circumstances. (See La Fleur v. Hernandez (1948) 84 Cal.App.2d 569, 574.) Failing to react when a vehicle stops in a roadway falls below that duty (although, unlike Plaintiffs, Defendants do not contend that that determination should be taken away from a jury). 3. Ms. Lee’s Contribution to the Incident Presents a Triable Issue of Material Fact. “Courts are very reluctant to uphold a summary judgment in comparative negligence cases. Ordinarily, issues of negligence are jury questions and the court may rarely decide comparative negligence questions without submitting them to the jury. In short, negligence is a question of fact if different conclusions can be rationally drawn from the evidence.” (Maxwell v. Colburn (1980) 105 Cal.App.3d 180, 186 [citations and internal quotation marks omitted].) The issue of a plaintiff’s comparative fault is for the trier of fact to decide. (See Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 193 [where the court, in ruling on motion for summary judgment, found that the case fell within the secondary assumption of risk doctrine, thus becoming a comparative fault question, and in turn an issue for the trier of fact].) Here, in either of the above scenarios, a triable issue of material fact exists. First, since Mr. Kittell and Officer Ewing have both represented that Ms. Lee was riding in the wrong side of the bike lane, the degree to which Ms. Lee contributed to this accident is a triable issue of material fact. Second, if we were to assume (without conceding) for the moment that Ms. Lee was in fact on the roadway (a fact that contradicts multiple versions of the incident), whether Ms. Lee’s choice to proceed without stopping or slowing down constituted comparative negligence is also a question of fact. Thus, in either scenario, a question of Ms. Lee’s comparative fault exists. Plaintiffs have done nothing to dispose of this question. At best, the degree of Ms. Lee’s comparative fault is disputed. At worst, Plaintiffs did not even make a prima facie showing of an absence of comparative negligence on the part of Ms. Lee. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION Because Plaintiffs failed to prove that Ms. Lee’s comparative fault is beyond dispute, this motion should be denied. IV. CONCLUSION Plaintiffs lack a statutory basis for bringing this motion as presented. Plaintiffs have sought to summarily adjudicate the issue of liability without resolving damages, but courts have expressly stated that Section 437c does not permit such a motion. Even that notwithstanding, Plaintiffs have failed to present a case in which facts are so overwhelmingly clear as to take away the issue of breach of duty from a jury. This case is a textbook example of one that should be determined by a jury. Plaintiff has completely failed to show otherwise. As such, for the foregoing reasons, Defendant Matthew Kittell respectfully requests that this court deny Plaintiffs’ Motion. DATED: July 2, 2021 MURPHY, PEARSON, BRADLEY & FEENEY By Jackson L. Stogner Attorneys for Defendant MATTHEW KITTELL JLS.3984676.docx 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 - DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION CERTIFICATE OF SERVICE Joan E. Soares, declare: I am a citizen of the United States, am over the age of eighteen years, and am not a party to or interested in the within entitled cause. My business address is 580 California Street, Suite 1100, San Francisco, California 94104. On July 2, 2021, I served the following document(s) on the parties in the within action: DEFENDANT MATTHEW KITTELL’S OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION VIA E-MAIL: I attached the above-described document(s) to an e-mail message, to transmit the e-mail message to the person(s) at the e-mail address(es) listed below. My email address is JSoares@mpbf.com. XX VIA FILE & SERVE: By causing a true and correct copy thereof to be served through File & ServeXpress addressed to all parties appearing on the File & ServeXpress Serve electronic service list. William T. Webb Webb Legal Group 155 Montgomery Street, Suite 1200 San Francisco, CA 94104 E-mail: wwebb@webblegalgroup.com Phone: (415) 277-7200 Attorney For Plaintiffs LAURANNE LEE AND MARTIN GANAPOLER Rosaline S. Ayoub Quintairos, Prieto, Wood & Boyer, P.A 500 N. Brand Boulevard, Suite 1650 Glendale, CA 91203 E-mail: Rose.ayoub@qpwblaw.com Phone: (213) 486-0048 Fax: (213) 486-0049 Attorney For Defendant/Cross-Complainant MATTHEW KITTELL Steffanie Malla Lewis Brisbois Bisgaard & Smith LLP 333 Bush Street, Suite 1100 San Francisco, CA 94104-2872 E-mail: steffanie.malla@lewisbrisbois.com Phone: (415) 262-8583 Fax: (415) 434-0882 Attorney For Defendants LYFT, INC. AND AHMAD HAMID I declare under penalty of perjury under the laws of the State of California that the foregoing is a true and correct statement and that this Certificate was executed on July 2, 2021. By Joan E. Soares