Jing Huang v. Bicycle Casino, Inc.

• Decision Date: 19 October 2016
• Docket Number: B266350
• Citation: 4 Cal.App.5th 329,208 Cal.Rptr.3d 591
• Court: California Court of Appeals Court of Appeals
• Parties: Jing HUANG, Plaintiff and Appellant, v. The BICYCLE CASINO, INC., Defendant and Respondent.

4 Cal.App.5th 329

208 Cal.Rptr.3d 591

Jing HUANG, Plaintiff and Appellant,

v.The BICYCLE CASINO, INC., Defendant and Respondent.

B266350

Court of Appeal, Second District, Division 8, California.

Filed October 19, 2016

Steinbrecher and Associates and Edward Steinbrecher for Plaintiff and Appellant.

Manning & Kass, Ellrod, Ramirez, Trester LLP, Jeffrey M. Lenkov, Zubin Farinpour, and Mae G. Alberto, Los Angeles, for Defendant and Respondent.

FLIER

, J.

Jing Huang was injured boarding a shuttle bus provided by Bicycle Casino, Inc. (Bicycle Casino or the casino), which transported passengers from Monterey Park to Bicycle Casino in Bell Gardens. Huang sued Bicycle Casino for negligence. The trial court granted Bicycle Casino's motion for summary judgment. We reverse.

FACTS AND PROCEDURE

Huang alleged Bicycle Casino was a common carrier and had a duty and responsibility to ensure the safety and security of its patrons who took the shuttle bus. Bicycle Casino allegedly knew or should have known of the dangers associated with patrons boarding the shuttle bus and was negligent in failing to provide a safe passageway for its patrons to enter the shuttle.

The relevant facts reflected in the parties' separate statements of undisputed material facts are as follows. According to the Asian Games Manager at Bicycle Casino, the casino operated a free shuttle service for a select group of people to whom it disbursed advertisements. The shuttle picked up passengers at certain restaurants and other landmarks on public streets and took them to Bicycle Casino to gamble.

The shuttle picked up passengers in Monterey Park on Garvey Street. It had been picking up passengers at that location since March 2012. The shuttle held 45 people, including the driver. There were no shuttle stop signs. The shuttle driver typically stood at the top of the steps of the bus, and the waiting passengers would “crowd” onto the shuttle. The driver collected players cards that Bicycle Casino issued. Huang filled out paperwork to receive the card, but she did not pay any money for it. The shuttle passengers had access to special promotions like gambling chips and free lunches when they arrived at Bicycle Casino, where a casino host would return their players cards as they disembarked the shuttle. This was the purpose of checking their players cards when they boarded the shuttle. But individuals could board the shuttle if they did not have a players card. In this event, the shuttle driver would ask for their identification.

On October 22, 2012, at around 1:00 p.m., Huang was waiting for the Bicycle Casino shuttle along with a crowd of others. One witness estimated approximately 40 to 50 people were waiting, while another estimated 60 to 70. The shuttle was supposed to pick up passengers at 1:15 p.m. The next pick up time was 2:15 p.m. When the shuttle arrived, it stopped approximately 20 to 30 meters from where the group was standing. The waiting crowd ran toward the shuttle, and Huang rushed to the shuttle with everyone else. Approximately 20 people had already boarded the shuttle at the time Huang tried to board. Another person in the waiting crowed described the scene as “complete disorder” and “chaos.” Huang was on the left side of the shuttle entrance, and with her left hand on the handrail, she put her right foot on the first step. The crowd on the right side surged, and she was pushed and fell. But according to the shuttle driver, “[e]verybody else lined up,” and Huang cut in line. Paramedics took Huang to the hospital, where she had an X-ray. She had a broken bone in her left hip that required surgery the next day.

This was not the first instance in which a waiting crowd rushed the shuttle and pushed or shoved to board—it happened “all the time.” The 1:15 p.m. pickup time was popular. It also was not the first time there were more people waiting than there were seats on the shuttle, and the scene became “chaotic.”

Bicycle Casino had not given the shuttle driver any written policies or procedures to follow in operating the shuttle, nor did it give him any training in operating the shuttle. But the driver had more than 10 years' experience in driving buses, including for other casinos, and he had driven larger casino shuttles before.

When the driver first started driving the shuttle, he had a casino host accompanying him on the shuttle. The host would exit the shuttle and help the passengers line up and board. The host had the driver tell the waiting passengers in Chinese that the shuttle would not leave until they formed a line. After approximately half a month, the casino host stopped accompanying the driver regularly, though the driver would occasionally ask the host to accompany him when he saw the passengers becoming disorderly. The host told the shuttle drivers to make sure the waiting passengers formed a line before they even opened the door because he had seen people shoving each other from “[t]he very first.” There was no Bicycle Casino host on the shuttle on the day in question, solely a driver.

Prior to Huang's incident, Bicycle Casino had never received a report of an injury on or in connection with its shuttle service. Huang never saw anyone fall, push, or shove others to get on the shuttle, prior to her incident.

Huang proffered the expert witness declaration of Augustine Zemba, who had testified in more than 600 depositions involving bus-related issues and testified in more than 80 court trials. He had more than 50 years' experience managing and operating large bus fleets. Zemba opined that Bicycle Casino was operating the shuttle as a common carrier. He further opined that Bicycle Casino was negligent in that it failed to properly train its bus drivers on the safe and orderly boarding of passengers and have established, written safe-boarding procedures. He also concluded that it was foreseeable a passenger trying to board the shuttle under the circumstances of this case would be pushed, shoved, or bumped and fall. Bicycle Casino should have had a host or second person from the casino assisting the driver and passengers in safely boarding the bus. According to Zemba, this host should have made sure that the door to the shuttle remained closed until the passengers lined up several feet from the door to board one at a time. Bicycle Casino also should have provided a regular bus stop so that passengers knew where to wait, and it should have stopped the shuttle there instead of 30 meters away, causing a rush to the shuttle.

Bicycle Casino objected to Zemba's entire declaration and to specific statements in it. It objected to the entire declaration on the grounds that it lacked foundation, Zemba lacked personal knowledge, he failed to state the basis for his opinion, and he had no experience or expertise in casino shuttle buses. Among other things, it also objected to the statements that Bicycle Casino was a common carrier; that it was foreseeable a passenger trying to board the shuttle under the circumstances of this case would be pushed, shoved, or bumped and fall; and that Bicycle Casino was negligent in failing to provide a host on the shuttle.

The court granted Bicycle Casino's motion for summary judgment and sustained all objections to Zemba's declaration. It held Bicycle Casino was not a common carrier and owed only a duty of ordinary care to the shuttle passengers. But the scope of the ordinary duty of care did not extend to protecting Huang from being bumped by other passengers as she boarded the shuttle. In light of the ruling on duty, the court declined to address Bicycle Casino's additional argument that Huang could not prove causation.

The court entered judgment for Bicycle Casino, and Huang timely appealed.

STANDARD OF REVIEW

The trial court shall grant a motion for summary judgment if all the papers show there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c)

.) The defendant moving for summary judgment has the burden of establishing either (1) one or more elements of the plaintiff's causes of action cannot be established or (2) a complete affirmative defense to the causes of action exists. (Code Civ. Proc., § 437c, subds. (o )(1), (2), (p)(2).) To demonstrate the elements of a cause of action cannot be established, the defendant may show the plaintiff does not possess evidence needed to support a prima facie case and cannot reasonably obtain the needed evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The defendant may also, but need not, present evidence conclusively negating an element of the cause of action. (Ibid. ) Once the defendant has met its initial burden, the burden shifts to the plaintiff to produce evidence showing a triable issue of material fact. (Code Civ. Proc., § 437c, subd. (p)(2).)

On appeal from summary judgment, we review the record de novo and must independently determine whether triable issues of material fact exist. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767, 107 Cal.Rptr.2d 617, 23 P.3d 1143

; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334, 100 Cal.Rptr.2d 352, 8 P.3d 1089.) We resolve any evidentiary doubts or ambiguities and view all inferences from the evidence in the light most favorable to the party opposing summary judgment. (Aguilar v. Atlantic Richfield Co., supra , 25 Cal.4th at p. 843, 107 Cal.Rptr.2d 841, 24 P.3d 493

; Saelzler v. Advanced Group 400, supra , at p. 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143.)

DISCUSSION

The elements of a negligence cause of action are a legal duty, a breach of the legal duty, proximate or legal cause, and a resulting injury. (United States Liab. Ins. Co. v. Haidinger–Hayes, Inc. (1970) 1 Cal.3d 586, 594, 83 Cal.Rptr. 418, 463 P.2d 770

.) In this case, Huang alleged Bicycle Casino was a common carrier, a type of entity that owes a heightened duty of care to its passengers under certain circumstances....