Rycz v. Superior Court of S.F. Cnty.

81 Cal.App.5th 824

297 Cal.Rptr.3d 487

Mark RYCZ, Petitioner,

v.The SUPERIOR COURT OF SAN FRANCISCO COUNTY, Respondent;

Josefina McGarry et al., Real Parties in Interest.

A163741

Court of Appeal, First District, Division 5, California.

Filed July 28, 2022

Bremer Whyte Brown & O'Meara LLP, John O'Meara and Casey B. Nathan, Woodland Hills; Greines, Martin, Stein & Richland LLP, Marc J. Poster, Los Angeles, for Petitioner.

de la Peña & Holiday LLP, Gregory R. de la Peña, Thomas J. O'Brien, San Francisco, Kevin N. LaBarbera, and R. Wesley Pratt for Real Parties in Interest.

SIMONS, J.

Stella Grace Yeh (Yeh) attended the University of San Diego. Following a party where Yeh became highly intoxicated, a friend summoned an Uber to take Yeh back to her dorm at the University. That ride was terminated before completion, and the Uber driver, one of the codefendants, Louvensky Geffrard, exited the Interstate 5 freeway at Gilman Drive and allegedly ordered Yeh out of the car. Subsequently, Yeh initiated a second ride request from Uber, and petitioner Mark Rycz (Petitioner) arrived. Yeh did not enter that car and instead left the area. Half an hour later, an eyewitness observed Yeh walk onto the freeway, where she was struck by two different cars. Petitioner alleges Yeh was several miles away from where Petitioner saw her when she was killed. Each aspect of this tragic event occurred in San Diego County.

Petitioner is one of several codefendants in a civil action seeking damages for Yeh's death, pending in respondent Superior Court of San Francisco County (Superior Court). The real parties in interest are the plaintiffs. The Superior Court denied Petitioner's motion for change of venue to San Diego County under section 397, subdivision (c) of the Code of Civil Procedure, based on the convenience of witnesses and the interests of justice.¹ Petitioner seeks a writ of mandate directing the Superior Court to set aside denial of the motion and to grant the motion. (§ 400.) Among other things, we conclude the Superior Court erred (1) in reasoning the location of the witnesses was unimportant because they could appear remotely under section 367.75, enacted in response to the COVID-19 pandemic, and (2) in finding Petitioner failed to show venue in San Diego would be more convenient for most witnesses and promote the interests of justice. We grant writ relief to require the Superior Court to grant Petitioner's motion.

BACKGROUND

The Underlying Lawsuit

According to the underlying Third Amended Complaint (Complaint),² on May 12, 2018 around 1:30 a.m., Yeh was struck and killed by two vehicles on Interstate 805 southbound in San Diego County. Yeh, a 19-year-old student at the University of San Diego (USD), was highly intoxicated and walking on the freeway.

Plaintiffs and real parties in interest (Plaintiffs) are Josefina McGarry, Yeh's mother, in her individual capacity; Josefina McGarry in her capacity as a successor in interest to Yeh; and McKenna McGarry Limentani, Yeh's sister, in her capacity as a successor in interest to Yeh. In April 2021, Plaintiffs filed the Complaint against Uber Technologies, Inc. (Uber);³ Geffrard, an Uber driver; and Petitioner, also an Uber driver.

The Complaint alleges that, prior to Yeh's death, she and some friends attended a party, where Yeh became highly intoxicated; they then proceeded to a fast-food establishment. At 12:49 a.m. on May 12, 2018, one of Yeh's friends requested a ride home for Yeh through the Uber app on Yeh's phone. Defendant Geffrard arrived and picked up Yeh to take her to a dorm at USD. Geffrard traveled north on the Interstate 5 freeway. Yeh was seated in the front passenger seat, and she "forcefully vomited all over the dashboard and interior front windshield" of the car. At around 12:55 a.m., Geffrard allegedly exited the interstate at Gilman Drive, ordered Yeh out of his car, and terminated the ride. He left Yeh in that area, which the Complaint describes as "empty," devoid of "businesses or homes," and "lack[ing] sufficient lighting for pedestrian use." Geffrard did not call 9-1-1 or otherwise ensure Yeh's safety despite his knowledge of her condition.

According to the police report, Geffrard told the police that Yeh canceled the ride after she vomited. Geffrard said he offered to take her back to the pickup location where her friends were, but Yeh declined and asked to be dropped off.

Subsequently, Yeh initiated a second ride request, and Petitioner arrived in the area. Petitioner allegedly did not identify himself as an Uber driver and Yeh fled onto a freeway off-ramp instead of getting into his car. Petitioner, who allegedly could tell Yeh was highly intoxicated, left the area at 1:03 a.m. and did not contact 9-1-1 for assistance.

According to the police report, Petitioner told the police he had difficulty finding Yeh and, when he located her, he called out that he was her Uber ride but she appeared frightened and did not respond. He saw her cross a freeway off-ramp and disappear into some bushes on the side of the freeway. He assumed she was an intoxicated college student taking a shortcut to a nearby college campus.

Petitioner alleges Yeh was roughly four or five miles away from where Petitioner saw her when she was killed half an hour later. According to the police report, it is unknown how Yeh "traversed the distance between Gilman Drive at I-5 and I-805 at SR-52." An eyewitness told the police he saw Yeh walk onto the freeway and get hit by one car and then another car.

A toxicology report stated Yeh's blood-alcohol level was 0.21 percent.

The Complaint alleges a common carrier negligence claim against Uber and Geffrard; a negligence claim against Geffrard and Petitioner; a negligent hiring, training, and supervision claim against Uber; negligent and intentional misrepresentation claims against Uber relating to assertions about rider safety; a "Bane Act"⁴ claim against Uber and Geffrard; a survivorship claim; a wrongful death claim; a wrongful business practices claim against Uber; and a declaratory relief claim. The negligence cause of action alleges that the location where Geffrard and Petitioner left Yeh was "inherently dangerous" and that Petitioner witnessed her walk on the freeway off-ramp and should have recognized the risk of harm.

In August 2021, Petitioner filed a cross-complaint against Vasthi Curcio, Richard Middleton Rail III, Alison Marie Campos, and Roe defendants, for implied indemnity, contribution, and apportionment.⁵ Curcio and Rail allegedly drove the cars that struck Yeh. Campos and unknown Roe defendants allegedly furnished Yeh, a minor, with alcohol and marijuana prior to her death. The cross-complaint also named an unknown Roe defendant who "transported [Yeh] from Gilman Drive and the I-5 in San Diego County by vehicle to the I-805 Southbound, just south of State Route (SR-52)."

Also in August 2021, Petitioner filed an answer to the Complaint. His affirmative defenses include, among others, the comparative fault of Yeh; the comparative fault of third parties, including those named in the cross-complaint; and that there were intervening and/or superseding causes of Yeh's death.

The Motion to Change Venue

On August 16, 2021, Petitioner moved to change venue to San Diego Superior Court for the convenience of witnesses and to promote the ends of justice ( § 397, subd. (c) ). Codefendants Geffrard and Uber joined Petitioner's motion.

Petitioner pointed out that the location of Yeh's death is 494 miles from the courthouse in San Francisco and that the only connection between the case and San Francisco County is that the Uber corporate headquarters is located in San Francisco. Petitioner argued the case should be transferred to San Diego, "which is where the incident occurred, where the two alleged dangerous conditions are located, and where the vast majority of the relevant and third-party witnesses are based. Doing so will ensure that the countless non-party lay and government witnesses will not be burdened by having to attend a trial hundreds of miles from their homes and places of employment."

Petitioner's argument continued: "the vast majority of the relevant third-party witnesses — police officers, fire department personnel, AMR personnel, toxicologists, coroners, etc. — are from the County of San Diego.... [T]he events and circumstances leading to [Yeh's] death [were] investigated by the California Highway Patrol in San Diego, the automobile accident causing her death occurred on a freeway in the County of San Diego, and [Yeh's] body was handled by government personnel in the County of San Diego following her death. [Citation.] Police officers from the County of San Diego also met with relevant percipient witnesses who lived [in] and were from the County of San Diego in order to investigate the cause of [Yeh's] death, and [Yeh's] belongings were also taken and tested by the local police and a local lab in the County of San Diego."

Petitioner's motion was supported by a declaration from his counsel. The declaration listed 27 "potential government or third-party healthcare provider witnesses" with work addresses in San Diego. The declaration also included brief descriptions of the expected subjects of their testimony. The declaration did not set forth the expected testimony itself, but an extensive police report detailing the investigation was attached. An investigation report from the San Diego Medical Examiner was also attached to the declaration.

Petitioner's counsel's declaration also listed nine "non-party witnesses who are believed to have relevant percipient witness knowledge of the incident or the events leading up to the incident," with brief descriptions of the expected subjects of their testimony. The police report attached to the declaration set forth the accounts they provided the police. The declaration listed San Diego County addresses for six of those witnesses, while counsel averred he "believed" the remaining three lived in Indiana, New...