Preview
1 Laurel L. Simes (SBN 134637)
Rachel B. Abrams (SBN 209316)
2 Meghan E. McCormick (SBN 283853)
LEVIN SIMES ABRAMS LLP ELECTRONICALLY
3 1700 Montgomery Street, Suite 250
San Francisco, California 94111 F I L E D
4 Telephone: (415) 426-3000 Superior Court of California,
County of San Francisco
Facsimile: (415) 426-3001
5 llsimes@levinsimes.com 09/30/2019
rabrams@levinsimes.com Clerk of the Court
6 mmccormick@levinsimes.com BY: EDNALEEN ALEGRE
Deputy Clerk
7 Attorneys for Plaintiff
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 (UNLIMITED JURISDICTION)
11
Case No. CGC-19-578278
12
JANE DOE 3, an individual, PLAINTIFF’S MEMORANDUM OF
13 POINTS AND AUTHORITIES IN
Plaintiff, OPPOSITION TO DEFENDANT LYFT,
14 INC.’S MOTION TO DISMISS OR STAY
vs. BASED ON FORUM NON CONVENIENS
15
LYFT, INC., a Delaware Corporation; and DOES 1 Date: October 10, 2019
16 Time: 9:30 a.m.
through 50, inclusive,
Department: 302
17
Defendants.
Filed: August 8, 2019
18 Trial Date: None Set
19 Reservation No.: 09061010-12
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Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 TABLE OF CONTENTS
2
INTRODUCTION ..................................................................................................................................... 1
3
LEGAL STANDARD................................................................................................................................ 4
4
ARGUMENT ............................................................................................................................................. 5
5
I. There Is Significant Overlap as to Factors Considered when Coordinating Cases and Those
6
Addressed by a Forum Non Conveniens Motion ........................................................................... 5
7
II. The Public Interest Factors Weigh in Favor of California Because of the Pending Petition for
8
Coordination, Because of LYFT’s Long-Standing and Pervasive Presence in California, and
9 Because LYFT Will Necessarily Litigate Cases Brought by California Plaintiffs Involving
10 Identical Theories of Liability ....................................................................................................... 7
11 III. The Private Interest Factors Weigh in Favor of California............................................................ 9
12 IV. LYFT’s Motion Should be Denied Because Plaintiff Sued LYFT in Its Home State ................. 11
13
V. Roulier Is Illustrative and the Case Law Cited by LYFT Does Not Support Granting a Forum
14 Non Conveniens Motion .............................................................................................................. 12
15 CONCLUSION ........................................................................................................................................ 15
16
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i Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 TABLE OF AUTHORITIES
2 CASES
3 Bristol-Myers Squibb Co. v. Sup. Court of Cal. San Francisco County (2017) 137 S.Ct. 1773 ........... 4
4 Campbell v. Parker-Hannifin Corp. (1999) 69 Cal.App.4th 1534 ...................................................... 14
5 Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408 ............................................. 15
6 Great Northern Ry. Co. v. Superior Court (1970) 12 Cal.App.3d 105 ............................................... 14
7 Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689 ............................................................. 14
8 Hahn v. Diaz-Barba, (2011) 194 Cal. App. 4th 1177 .................................................................... 10, 13
9 Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753 ............................................ 14
10 Price v. Atchison, T. & S. F. Ry Co (1954) 42 Cal.2nd 577 ................................................................ 13
11 Roman v. Liberty Univ. Inc. (2008) 162 Cal.App.4th 670 ................................................................... 14
12 Roulier v. Cannondale (2015) 101 Cal.App.4th 1180 ................................................................... 12, 13
13 Rubio v. Monsanto Co. (C.D. Cal. 2016) 181 F. Supp. 3d 746 .......................................................... 11
14 Saleh v. Titan Corp., (S.D. Cal. 2005) 361 F. Supp. 2d 1152 ............................................................. 11
15 Stangvick v. Shiley Inc. (1991) 54 Ca.3d 744 ............................................................................... passim
16 STATUTES
17 Cal. Code Civ. Proc. Section 2025.310(a) ............................................................................................. 3
18 Cal. Code Civ. Proc. Section 404 .......................................................................................................... 6
19 CALIFORNIA RULES OF COURT
20 Rule 3.1010(a)-(b).................................................................................................................................. 3
21 Rule 3.400(c).......................................................................................................................................... 7
22 Rule 3.521 .............................................................................................................................................. 6
23
24
25
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ii Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 INTRODUCTION
2 This case is subject to a Petition for Coordination of sexual assault cases filed against Defendant
3 LYFT, INC. (“LYFT”) in California.1 At the time the Petition was filed, there were thirty-one (31) such
4 cases brought against LYFT. All of the cases involve rapes, sexual assaults, and/or other sexually
5 harassing behavior committed by LYFT drivers against LYFT passengers.
6 Subsequent to the filing of the Petition, an additional five cases were brought against LYFT.
7 Additional cases will be filed by this firm and by other counsel representing victims of sexual assault by
8 LYFT drivers including the Estey & Bomberger firm, which represents at least fourteen of the plaintiffs
9 that have already joined the Petition for Coordination. Based upon communication with that firm and
10 with other counsel, the total number of such cases is expected to reach and exceed fifty (50).
11 While the Petition for Coordination is not before this Court, the factors that tend to support
12 coordination overlap with forum non conveniens analysis. All of the cases involve nearly identical issues
13 of fact and law. And, more importantly for the purposes of this Motion and Opposition, California is the
14 locus of all liability related evidence, facts, witnesses, and documents. Although some of the assaults
15 occurred outside of California and involve non-California residents, the critical mass of plaintiffs are
16 California residents. Accordingly, California courts will be handling and managing the litigation at least
17 as it pertains to this critical mass of California plaintiffs.
18 Meanwhile, LYFT filed forum non conveniens motions in all cases brought by non-resident
19 plaintiffs. The logical extension of these motions is that piecemeal litigation in multiple states running
20 parallel to the California litigation would be more convenient for LYFT and the courts. This position
21 runs contrary to every accepted, modern approach to mass tort management.
22 The reason California is the center of this litigation is fairly straightforward. LYFT, a California
23 corporation, came into existence in California and its earliest sexual assault victims reside here, as do a
24 significant number of non-party sexual assault victims who have information relevant to LYFT’s sexual
25 assault problem. Four years ago, LYFT first became aware of the fact that a subset of its drivers were
26 sexual predators. Subsequent to the first reported assault four years ago, there have been multiple
27 complaints of sexual assaults and/or sexually inappropriate behavior committed by LYFT drivers that
28
1
See Petition for Coordination filed and pending before the Judicial Panel attached to Abrams Dec as Exhibit A.
1 Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 were reported to LYFT by its victim passengers.
2 LYFT’s poor management of its sexual predator problem and its acts and omissions over the
3 ensuing four years is the subject of each mass tort case. San Francisco is home to LYFT employees,
4 former employees, and a significant number of non-party sexual assault victims who reported the problem
5 to LYFT. Consequently, the female victims of this corporate malfeasance chose to bring their remarkably
6 similar claims in the county where LYFT maintains its principal place of business and where jurisdiction
7 and venue are inarguably proper.
8 For purposes of analyzing forum non conveniens issues, it is important to understand that the
9 factual foundation for liability against LYFT was in place before the incident in question occurred. This
10 foundation includes but is not limited to LYFT’s hiring practices, LYFT’s lack of diligence in running
11 background checks, LYFT’s decisions involving safety measures to be implemented on the LYFT
12 platform and/or during rides, LYFT’s “safe-rider” marketing campaign, and the steps LYFT failed to
13 take to lessen the likelihood of assaults. As Plaintiff’s Complaint makes clear,2 the entire negligence
14 case against LYFT was in place prior to and independent of the individual driver assaults that triggered
15 the harm.
16 In this case, there are only two fact witnesses to the rape. The plaintiff is a witness and a party.
17 The only other witness is LYFT’s driver, Michael Senk.3 Given the Tacoma Police Department is
18 currently investigating the incident4 and that Mr. Senk may be subject to criminal charges, , he cannot be
19 compelled to testify in a civil trial– should he opt not to do so – without violating his constitutional
20 rights.5 In the unlikely event LYFT should ignore the rape kit and DNA evidence and contest the fact of
21 this rape, LYFT will not be a disadvantaged by virtue of the fact that the rape occurred in Washington.
22 There are no other non-party witnesses. LYFT’s references to Washington-based “third party
23 liability witnesses”6 are nothing more than conjecture. This is not a criminal rape case; it is a civil matter
24 revolving around LYFT’s corporate conduct. The witnesses identified by LYFT, including hypothetical
25 “friends” who “likely live in Washington,” “persons familiar with [plaintiff’s] daily life who likely also
26 reside in Washington” and law enforcement personnel, have little if anything to offer regarding LYFT’s
27 2
See Complaint attached to Abrams Dec. as Exhibit B.
3
28 Id.
4
See Declaration of Warren Metlitzky (“Metlitzky Dec.”) in support of LYFT’s Motion to Dismiss or Stay at ¶ 5(d).
5
U.S. Const. amend. V.
6
See LYFT’s Motion to Dismiss or Stay at p. 10; Metlitzky Dec. at ¶ 5(b)-(f).
2 Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 corporate liability.7 Aside from Plaintiff and LYFT’s driver, LYFT did not identify a single witness who
2 actually resides in Washington and who has information pertinent to the liability issues present in this
3 case. By contrast, there are a host of LYFT employee witnesses, former employee witnesses, and other
4 non-party sexual assault victims who were attacked by LYFT drivers and reported the same to LYFT
5 prior to the attack on Plaintiff, with relevant testimony who reside in California. See Section III below.
6 As the cases discussed herein demonstrate, the importance of witness location has receded
7 somewhat in favor of the more outcome-determinative question of which forum has a more compelling
8 interest in the litigation. Technological advancements – including electronic storage and production of
9 documents, videotaped depositions, appearing in court via Skype or another streaming service, etc. –
10 have made it easier to obtain out of state evidence and testimony.8 Consequently, the trend has been to
11 afford less weight to the convenience of the litigants in favor of the larger question concerning when it is
12 fair and appropriate to ask state courts and prospective jurors to entertain a particular piece of litigation.
13 This question, generally referred to as the “public interest” prong of the forum non conveniens
14 doctrine, asks whether California has a sufficient community interest in the litigation so that it makes
15 sense for the California courts and prospective jurors to devote their time and attention to the case. Here,
16 the community interest could not be more compelling. Not only is LYFT a high-profile California
17 corporation where the critical mass of its employees, offices, and drivers are located, but the problem of
18 sexual assaults committed by LYFT drivers has been receiving almost daily California press, radio, and
19 TV coverage.9 The relationship between LYFT and its drivers and issues of passenger safety are currently
20 the subject of robust public discussion and the focus of regulatory legislation in Sacramento.
21 The relationship of this case to California is evident, immediate, concrete, and compelling. LYFT
22 was born in California; used and continues to use the San Francisco Bay Area and its residents as a testing
23 ground for its various platforms including rideshare, bikes, scooters, and autonomous vehicles; conducts
24 all corporate business in San Francisco; is subject to legislation and other governmental regulation in
25 California; makes all corporate decisions in the State; and is facing numerous lawsuits in California from
26
7
27 Id.
8
See e.g. Cal. Code Civ. Proc. § 2025.310(a) (“A person may take, and any person other than the deponent may attend, a
28 deposition by telephone or other remote electronic means”); Cal. Rules of Court, rule 3.1010(a)-(b)(“Any party may take an
oral deposition by telephone, videoconference, or other remote electronic means […and] [a]ny party may appear and
participate in an oral deposition by telephone, videoconference, or other remote electronic means”).
9
See sampling of local media cover regarding LYFT attached to Abrams Dec. as Exhibit D.
3 Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 both California and non-California plaintiffs stemming from sexual assaults committed by its drivers. To
2 suggest any forum other than California is more convenient or has a greater stake in regulating LYFT’s
3 conduct is belied by these facts.
4 Although this particular assault occurred within Washington’s borders by happenstance, it has
5 little or no interest in the corporate malfeasance of a California corporation which is the subject of mass
6 tort litigation in California State Courts. Therefore, this case should remain in California because its
7 center of gravity – and the center of gravity for all other cases filed against LYFT stemming from sexual
8 assaults committed by drivers – is California, the location of LYFT’s corporate headquarters. For these
9 reasons and all others contained herein, Plaintiff respectfully requests this Court deny LYFT’s Motion
10 or, in the alternative, stay its decision pending the Judicial Council’s decision on the Petition for
11 Coordination of cases filed in California against LYFT.
12 LEGAL STANDARD
13 A corporation is considered “at home” for purposes of general jurisdiction wherever it maintains
14 its principal place of business, such that any claim against the defendant may be brought there even if an
15 incident occurred in a different state.10 This court, then, unquestionably has jurisdiction over the parties
16 and the subject matter of Plaintiff’s claims.
17 Forum non conveniens is an equitable doctrine wherein a court may invoke its discretionary
18 power to decline to exercise the jurisdiction it has over a transitionary cause of action when it believes
19 that the action may more appropriately and justly tried elsewhere. The standard of review is whether
20 there was an abuse of discretion.11 California employs a two-step process when a forum non conveniens
21 motion is filed. First, the presiding court must determine whether the proposed alternative forum is a
22 suitable place for trial.12 If the answer to that question is in the affirmative, the court must consider the
23 “private interests of the litigants and the interests of the public in retaining the action in California.”13 In
24 other words, the court must analyze the competing interest of the two forums.
25 However, dismissal of an action based on forum non conveniens should be exercised with great
26 care. This is especially true when, as here, the plaintiff filed suit in the county of LYFT’s corporate
27
10
28 Bristol-Myers Squibb Co. v. Sup. Court of Cal. San Francisco County (2017) 137 S.Ct. 1773, 1780.
11
Stangvick v. Shiley Inc. (1991) 54 Ca.3d 744, 751.
12
Id.
13
Id.
4 Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 headquarters, in a court of proper statutory venue, in a court that can properly exercise jurisdiction over
2 the parties, and in a forum with sufficient connection to the controversy to justify the application of its
3 own laws. Further, a plaintiff’s choice of forum is “entitled to great weight even though the plaintiff is a
4 nonresident.”14 Only if the balance of the public and private factors is “strongly in favor of the defendant”
5 should a plaintiff’s choice of forum be disturbed.15
6 Over time, public interest factors have emerged as more outcome determinative than the private
7 interests of the litigants. The fact that it is not uncommon for witnesses to reside in more than one state
8 and the technological advancements that ameliorate some of the difficulties with respect to witness
9 location and allow for interstate discovery and testimony pushed the public interest factors for the
10 forefront of forum non conveniens analysis. Accordingly, Plaintiff provides an analysis as to the public
11 interest factors first and then turns to the private factors. Under either prong of the two-part test,
12 California is the superior forum. Since it is impossible to look at the public interest factors without also
13 reaching the issues with respect to judicial coordination of mass torts, Plaintiff begins with the question
14 of coordination.
15 ARGUMENT
16
I. There Is Significant Overlap as to Factors Considered when Coordinating Cases and
17 Those Addressed by a Forum Non Conveniens Motion
18 A Petition for Coordination seeking to coordinate all LYFT assault cases pending in California
19 was filed on September 4, 2019; the JCCP Number is 5061. At the time of this writing, there are thirty-
20 one cases subject to coordination, more than a third of which were brought by California plaintiffs.16 As
21 discussed herein infra, all of the criteria supporting coordination in California are in place. Assuming
22 arguendo that the Petition for Coordination is granted, California will be the forum and court that is best
23 suited to collectively and efficiently adjudicate Plaintiff’s claims and claims brought by other women.
24 Coordination of complex cases is permitted pursuant to § 404 of the California Code of Civil
25 Procedure and Rule 3.521 of the California Rules of Court. The purpose of coordination is the same as
26
14
27 Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452
15
Id.
16
28 See Petition for Coordination attached to Abrams Dec. as Exhibit A; see Class Action filed in San Francisco Superior Court
on behalf of Jane Does 1-3 by James McKiernan Lawyers on July 24, 2019 attached to Abrams Dec. as Exhibit E; see
complaint filed in San Francisco Superior Court on behalf of Jane Roes 1-14 by Estey & Bomberger LLP on September 4,
2019 attached to Abrams Dec. as Exhibit F.
5 Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 the forum non conveniens doctrine; to promote the ends of justice. Coordination of the instant case and
2 all other sexual assault cases filed against LYFT will achieve this goal for seven reasons: (1) the actions
3 require resolution of nearly identical factual and legal issues; (2) coordination will further the
4 convenience of the parties, witnesses, and counsel; (3) the only defendant, LYFT, is common to all
5 included actions; (4) defense counsel for defendants will likely be the same counsel of record for each of
6 the included actions; (5) all of the included actions are in the early stages of litigation, therefore no party
7 will be prejudiced or stalled by the coordination; (6) coordination will ensure judicial resources are used
8 efficiently; and (7) coordination will avoid duplicative and potentially inconsistent rulings and orders.
9 The attached chart17 demonstrates California is the only state in which multiple resident plaintiffs
10 brought suit against LYFT. The remainder of cases are scattered across the country, with every other
11 state being home to no more than three cases.18 Plaintiff expects this ratio to remain relatively constant
12 given LYFT’s strong and comparatively dominant presence in California.19 LYFT and Uber, another
13 transportation network company, account for “just above 13 percent of all vehicle miles traveled in the
14 Bay Area” which amounts to “1 in 8 and the highest ridesharing numbers of any major U.S. City.”20
15 While a single court hearing the claims of multiple plaintiffs would necessarily impose a burden
16 on that specific court, the overall judicial burden will be mitigated by coordination. This case and the
17 others pending against LYFT are complex and will involve the production of countless electronically
18 stored documents, necessitating the use of ESI orders. California’s court system is uniquely suited to
19 handle such cases via its Complex Civil Litigation Program.
20 A “complex case” is a civil action that requires “exceptional judicial management to avoid placing
21 unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and
22 promote effective decision making by the court, the parties, and counsel.”21 California’s complex civil
23 litigation program therefore seeks to achieve some of the same goals of concern in a forum non
24 conveniens motion; namely, ensuring trial is expeditious and relatively inexpensive and ensuring the
25 litigation will not overtax local courts. The alternative to coordination sought by LYFT (i.e. ad hoc
26 17
See List of cases pending against LYFT in California brought by both resident and non-resident plaintiffs attached to Abrams
27 Dec as Exhibit G.
18
Id.
19
28 See NBC Bay Area, Uber, LYFT Adding to Bay Area Traffic Congestion: Study, (Aug. 2019) attached to Abrams Dec as
Exhibit H.
20
Id.
21
Cal. Rules of Court, Rule, 3.400(c).
6 Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 litigation in multiple forums) will result in substantial costs both to the parties and interstate judicial
2 system, the unnecessary duplication of work, and lead to inconsistent decisions on otherwise similar
3 procedural and substantive issues.
4
II. The Public Interest Factors Weigh in Favor of California Because of the Pending
5 Petition for Coordination, Because of LYFT’s Long-Standing and Pervasive
Presence in California, and Because LYFT Will Necessarily Litigate Cases Brought
6 by California Plaintiffs Involving Identical Theories of Liability
7 No forum has more of a vested interest in the regulation of LYFT than California. The public
8 interest factors to be considered under forum non conveniens analysis are “avoidance of overburdening
9 local courts with congested calendars, protecting the interests of potential jurors so they are not called
10 upon to decide cases in which the local community has littleconcern, and weighing the interests of
11 California and the alternate jurisdiction in the litigation.”22 Taking the aforementioned factors in turn,
12 each weigh in favor of keeping the case in California.
13 Regarding court congestion, and as discussed in § I supra, there is a pending Petition for
14 Coordination that will greatly reduce any burden this case may or may not impose on California’s court
15 system. Regarding factor two – the interest of potential jurors – the San Francisco community has a
16 significant interest in the regulation of and actions taken by LYFT given its longstanding and pervasive
17 presence in California. LYFT launched in San Francisco on May 22, 2012,23 rendering San Francisco
18 residents the veritable testing ground for LYFT’s firstand signature transportation service. In 2017,
19 LYFT announced a partnership with another company, Drive.ai, whose headquarters are in Mountain
20 View, California, wherein LYFT launched a fleet of self-driving cars in San Francisco.24 This move
21 again rendered San Francisco residents LYFT’s petri dish for another business venture.
22 In addition to testing its new products on California citizens, LYFT touches the lives of
23 innumerable Californians daily by way of traffic congestion. A 2018 study published by San Francisco
24 City Hall found LYFT and other transportation network companies were responsible for 50% of the
25 uptick in San Francisco traffic congestion from 2010-2016.25 A similar study found LYFT and other
26 22
Stangvik, supra, 54 Cal.3d at 751.
23
27 See Greiner et al., A History of LYFT, From Fuzzy Pink Mustaches to Global Ride Share Giant, CNN Business, available
at https://www.cnn.com/interactive/2019/03/business/lyft-history/index html (March, 2019)(last visited Sept. 15, 2019).
24
28 Id., see also Alex Davis, LYFT is Launching a Fleet of Self-Driving Cars in San Francisco, Wired (Sept. 2019) attached to
Abrams Dec. as Exhibit I.
25
See San Francisco County Transportation Authority, TNC and Congestion, (October 2018) attached to Abrams Dec. as
Exhibit J.
7 Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 transportation network companies are associated with “worsening travel time reliability,” that
2 transportation network companies are “the biggest factor driving rapid growth of congestion and
3 deterioration of travel time reliability in San Francisco…exceeding the combined effects of population
4 growth, employment growth, and network changes.”26 The study concluded the information is “of
5 interest to transportation planners, policy makers, and to the general public in San Francisco.”27 It further
6 concluded it is “in the public interest that decisions about the regulation” of LYFT and other
7 transportation network companies “be based on independent and peer-reviewed analysis.”28
8 These findings are unsurprising given rideshare vehicles have a bigger presence in the San
9 Francisco Bay Area than any other major U.S. City.29 LYFT’s presence in California is so pervasive that
10 former San Francisco Mayor Ed Lee declared Saturday, July 23, 2013 “LYFT Day.”30 California was
11 also the first state to form a “Sharing Economy Working Group,” the first of its kind in the United States,
12 “to take a comprehensive look at the economic benefits, innovative companies and emerging policy
13 issues around the growing ‘sharing economy.’”31
14 California is also home to 275,000 LYFT and other transportation network drivers,32 the home of
15 protests involving LYFT that drew national attention, including the attendance of presidential hopeful
16 Pete Buttigieg,33 and the site of legislation involving LYFT’s employment relationship with its drivers.34
17 All of these facts demonstrate LYFT is not only at home in California, but that its presence is felt by
18 nearly every California citizen, from the general public to the California legislature. California’s interest
19 in the present case is undoubtedly bolstered by the fact that a disproportionate number of California
20 residents have suffered similar assaults.35 A rash of local media attention occurred upon filing of this
21 case, and others, against LYFT.36 LYFT does not have as enduring and widespread a presence in
22 26
See Erhardt et al.,Do transportation network companies decrease or increase congestion?, Science Advances (Sept.
23 2019).included in Exhibit J to Abrams Dec.
27
Id.
28
24 Id.
29
See NBC Bay Area Report, supra n. 8.
30
25 See LYFT Blog, LYFT Day In San Francisco (July 2013) attached to Abrams Dec. as Exhibit K.
31
See J.B. Wogan, How Will the Sharing Economy Change the Way Cities Function? (October 2013) attached to Abrams
26 Dec. as Exhibit L.
32
See San Francisco Chronicle, Buttigieg joins Uber, LYFT drivers in San Francisco gig-work protest (Aug. 2019) attached
27 to Abrams Dec. as Exhibit M.
33
Id.
34
28 See San Francisco Chronicle, California legislature passes AB5 gig-work bill, which could turn contractors into employees
(Aug. 2019) attached to Abrams Dec. as Exhibit N.
35
See Chart of cases pending against LYFT in California supra n. 6.
36
See sampling of local media cover regarding LYFT attached to Abrams Dec. as Exhibit D.
8 Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 Washington.
2 Finally, and with respect to factor three, weighing the interests of California and Washington in
3 the litigation, Plaintiff asserts the aforementioned facts taken in conjunction with the pending Petition for
4 Coordination foreclose any argument that Washington has more of an interest in the litigation than
5 California. LYFT will necessarily litigate sexual assault cases in California; it has no basis for a forum
6 non conveniens motion in matters brought by California residents. As such, California will devote
7 judicial resources to cases involving the exact same theories of liability brought by the Plaintiff.
8 Washington courts on the other hand – should Plaintiff be required to refile her suit there – will be
9 burdened with litigating a complex, standalone case where the factual and legal issues overlap with those
10 pending in California.
11 LYFT’s Motion should be seen for what it is: an attempt to remove Plaintiff’s claim from a
12 jurisdiction that is traditionally plaintiff friendly. The Stangvick court warned against such tactics, stating
13 courts should be aware of “reverse forum shopping by defendants, seeking to take advantage of, or to
14 resist of the advantage of, laws favorable to the plaintiff in the jurisdiction suit is filed.”37 Plaintiff sued
15 LYFT in its home forum; a state which inarguably has a vested and heightened interest in the regulation
16 of LYFT because LYFT began in the San Francisco Bay Area; has and continues to use the San Francisco
17 Bay Area as the testing ground for its platform and multiple business ventures; is the epicenter of its
18 corporate decision making; is the home of its management level employees and board members; and is
19 the home state of more than one third of the plaintiffs whose cases are subject to the Petition for
20 Coordination. Plaintiff could not have brought suit in a more convenient forum. For all of these reasons,
21 the public interest factors weigh heavily in favor of California.
22
III. The Private Interest Factors Weigh in Favor of California
23
Private interest factors revolve around the convenience of the parties to the litigation. The factors
24
considered are those that “make trial and the enforceability of the ensuing judgment expeditious and
25
relatively inexpensive” including “the ease of access to sources of proof, the cost of obtaining attendance
26
of witnesses, and the availability of compulsory process for attendance of unwilling witnesses.”38 No
27
28
37
Stangvick, supra, 54 Cal.3d at 762.
38
Id. at 751.
9 Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 single factor should be considered in isolation.39
2 Both Plaintiff and LYFT will have out-of-state witnesses to call at trial,regardless of venue.
3 However, LYFT’s attempt to frame the instant action as one requiring multiple out of state witnesses –
4 including law enforcement, medical personnel, its driver, and hypothetical acquaintances and friends of
5 Plaintiff – is inaccurate. The only two witnesses to the rape giving rise to suit are Plaintiff and Mr. Senk.
6 Plaintiff will voluntarily appear for trial.40 The degree of Mr. Senk’s involvement will be likely be
7 determined by the outcome of the pending criminal investigation.
8 As for non-party witnesses, all of the individuals Plaintiff has spoken to regarding the rape and
9 its affect on her daily life will voluntarily appear for trial.41 LYFT did not identify a single, non-
10 hypothetical witness it would need at trial to lodge a complete defense. The law enforcement proceedings
11 are not part of the civil case, and there is no good faith contention that law enforcement and medical
12 personnel are necessary to dispute the fact of the underlying rape. Further, law enforcement and medical
13 personnel cannot testify as to the liability issues present here: namely, LYFT’s corporate conduct.
14 Alleging undue hardship because LYFT cannot compel unidentified, theoretical persons who may or may
15 not reside in Washington to testify at trial is insufficient to tip the scales in favor of Washington.
16 Additionally, the cases LYFT relied on in support of its assertion that compelling witnesses to
17 testify is only possible in Washington do not, upon close examination, support that assertion. The cases
18 are also factually distinguishable from the case at bar. In Hahn v. Diaz-Barba, the plaintiff, a German
19 citizen residing in Switzerland and Mexico and owner of a Mexican business, brought suit in California
20 against Mexican and Spanish citizens residing in San Diego County.42 The underlying case involved
21 breach of contract and a bankruptcy proceeding.43 Defendants brought a forum non conveniens motion
22 that was granted by the trial court and affirmed by the Court of Appeals because the courts found keeping
23 the case in California would require defendants to bring numerous Mexican witnesses, government
24 officials, and legal and economic experts to the U.S.44
25 The present case does not involve foreign parties or the import of foreign witnesses, government
26 39
Id. at n.4 [“An undue emphasis on a single factor is especially threatening to a balanced analysis because some of the
27 matters to be weighed will by their nature point to a grant or denial of the motion”.]
40
See Declaration of Jane Doe attached to Abrams Dec. as Exhibit C.
41
28 Ibid.
42
Hahn v. Diaz-Barba, (2011) 194 Cal. App. 4th 1177.
43
Id.
44
Id.
10 Pltf’s Memorandum of Points and Authorities in Opp
to Def LYFT’s FNC Motion to Dismiss or Stay
1 officials, or experts. LYFT’s assertion that it will need to subpoena multiple Washington witnesses to
2 California is unfounded because the witnesses LYFT identified consist primarily of police officers who
3 investigated the rape and medical professionals who conducted Plaintiff’s rape kit. LYFT may have a
Preview
1 Laurel L. Simes (SBN 134637) Rachel B. Abrams (SBN 209316) 2 Meghan E. McCormick (SBN 283853) LEVIN SIMES ABRAMS LLP ELECTRONICALLY 3 1700 Montgomery Street, Suite 250 San Francisco, California 94111 F I L E D 4 Telephone: (415) 426-3000 Superior Court of California, County of San Francisco Facsimile: (415) 426-3001 5 llsimes@levinsimes.com 09/30/2019 rabrams@levinsimes.com Clerk of the Court 6 mmccormick@levinsimes.com BY: EDNALEEN ALEGRE Deputy Clerk 7 Attorneys for Plaintiff 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 (UNLIMITED JURISDICTION) 11 Case No. CGC-19-578278 12 JANE DOE 3, an individual, PLAINTIFF’S MEMORANDUM OF 13 POINTS AND AUTHORITIES IN Plaintiff, OPPOSITION TO DEFENDANT LYFT, 14 INC.’S MOTION TO DISMISS OR STAY vs. BASED ON FORUM NON CONVENIENS 15 LYFT, INC., a Delaware Corporation; and DOES 1 Date: October 10, 2019 16 Time: 9:30 a.m. through 50, inclusive, Department: 302 17 Defendants. Filed: August 8, 2019 18 Trial Date: None Set 19 Reservation No.: 09061010-12 20 21 22 23 24 25 26 27 28 Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 TABLE OF CONTENTS 2 INTRODUCTION ..................................................................................................................................... 1 3 LEGAL STANDARD................................................................................................................................ 4 4 ARGUMENT ............................................................................................................................................. 5 5 I. There Is Significant Overlap as to Factors Considered when Coordinating Cases and Those 6 Addressed by a Forum Non Conveniens Motion ........................................................................... 5 7 II. The Public Interest Factors Weigh in Favor of California Because of the Pending Petition for 8 Coordination, Because of LYFT’s Long-Standing and Pervasive Presence in California, and 9 Because LYFT Will Necessarily Litigate Cases Brought by California Plaintiffs Involving 10 Identical Theories of Liability ....................................................................................................... 7 11 III. The Private Interest Factors Weigh in Favor of California............................................................ 9 12 IV. LYFT’s Motion Should be Denied Because Plaintiff Sued LYFT in Its Home State ................. 11 13 V. Roulier Is Illustrative and the Case Law Cited by LYFT Does Not Support Granting a Forum 14 Non Conveniens Motion .............................................................................................................. 12 15 CONCLUSION ........................................................................................................................................ 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 TABLE OF AUTHORITIES 2 CASES 3 Bristol-Myers Squibb Co. v. Sup. Court of Cal. San Francisco County (2017) 137 S.Ct. 1773 ........... 4 4 Campbell v. Parker-Hannifin Corp. (1999) 69 Cal.App.4th 1534 ...................................................... 14 5 Century Indemnity Co. v. Bank of America (1997) 58 Cal.App.4th 408 ............................................. 15 6 Great Northern Ry. Co. v. Superior Court (1970) 12 Cal.App.3d 105 ............................................... 14 7 Guimei v. General Electric Co. (2009) 172 Cal.App.4th 689 ............................................................. 14 8 Hahn v. Diaz-Barba, (2011) 194 Cal. App. 4th 1177 .................................................................... 10, 13 9 Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753 ............................................ 14 10 Price v. Atchison, T. & S. F. Ry Co (1954) 42 Cal.2nd 577 ................................................................ 13 11 Roman v. Liberty Univ. Inc. (2008) 162 Cal.App.4th 670 ................................................................... 14 12 Roulier v. Cannondale (2015) 101 Cal.App.4th 1180 ................................................................... 12, 13 13 Rubio v. Monsanto Co. (C.D. Cal. 2016) 181 F. Supp. 3d 746 .......................................................... 11 14 Saleh v. Titan Corp., (S.D. Cal. 2005) 361 F. Supp. 2d 1152 ............................................................. 11 15 Stangvick v. Shiley Inc. (1991) 54 Ca.3d 744 ............................................................................... passim 16 STATUTES 17 Cal. Code Civ. Proc. Section 2025.310(a) ............................................................................................. 3 18 Cal. Code Civ. Proc. Section 404 .......................................................................................................... 6 19 CALIFORNIA RULES OF COURT 20 Rule 3.1010(a)-(b).................................................................................................................................. 3 21 Rule 3.400(c).......................................................................................................................................... 7 22 Rule 3.521 .............................................................................................................................................. 6 23 24 25 26 27 28 ii Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 INTRODUCTION 2 This case is subject to a Petition for Coordination of sexual assault cases filed against Defendant 3 LYFT, INC. (“LYFT”) in California.1 At the time the Petition was filed, there were thirty-one (31) such 4 cases brought against LYFT. All of the cases involve rapes, sexual assaults, and/or other sexually 5 harassing behavior committed by LYFT drivers against LYFT passengers. 6 Subsequent to the filing of the Petition, an additional five cases were brought against LYFT. 7 Additional cases will be filed by this firm and by other counsel representing victims of sexual assault by 8 LYFT drivers including the Estey & Bomberger firm, which represents at least fourteen of the plaintiffs 9 that have already joined the Petition for Coordination. Based upon communication with that firm and 10 with other counsel, the total number of such cases is expected to reach and exceed fifty (50). 11 While the Petition for Coordination is not before this Court, the factors that tend to support 12 coordination overlap with forum non conveniens analysis. All of the cases involve nearly identical issues 13 of fact and law. And, more importantly for the purposes of this Motion and Opposition, California is the 14 locus of all liability related evidence, facts, witnesses, and documents. Although some of the assaults 15 occurred outside of California and involve non-California residents, the critical mass of plaintiffs are 16 California residents. Accordingly, California courts will be handling and managing the litigation at least 17 as it pertains to this critical mass of California plaintiffs. 18 Meanwhile, LYFT filed forum non conveniens motions in all cases brought by non-resident 19 plaintiffs. The logical extension of these motions is that piecemeal litigation in multiple states running 20 parallel to the California litigation would be more convenient for LYFT and the courts. This position 21 runs contrary to every accepted, modern approach to mass tort management. 22 The reason California is the center of this litigation is fairly straightforward. LYFT, a California 23 corporation, came into existence in California and its earliest sexual assault victims reside here, as do a 24 significant number of non-party sexual assault victims who have information relevant to LYFT’s sexual 25 assault problem. Four years ago, LYFT first became aware of the fact that a subset of its drivers were 26 sexual predators. Subsequent to the first reported assault four years ago, there have been multiple 27 complaints of sexual assaults and/or sexually inappropriate behavior committed by LYFT drivers that 28 1 See Petition for Coordination filed and pending before the Judicial Panel attached to Abrams Dec as Exhibit A. 1 Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 were reported to LYFT by its victim passengers. 2 LYFT’s poor management of its sexual predator problem and its acts and omissions over the 3 ensuing four years is the subject of each mass tort case. San Francisco is home to LYFT employees, 4 former employees, and a significant number of non-party sexual assault victims who reported the problem 5 to LYFT. Consequently, the female victims of this corporate malfeasance chose to bring their remarkably 6 similar claims in the county where LYFT maintains its principal place of business and where jurisdiction 7 and venue are inarguably proper. 8 For purposes of analyzing forum non conveniens issues, it is important to understand that the 9 factual foundation for liability against LYFT was in place before the incident in question occurred. This 10 foundation includes but is not limited to LYFT’s hiring practices, LYFT’s lack of diligence in running 11 background checks, LYFT’s decisions involving safety measures to be implemented on the LYFT 12 platform and/or during rides, LYFT’s “safe-rider” marketing campaign, and the steps LYFT failed to 13 take to lessen the likelihood of assaults. As Plaintiff’s Complaint makes clear,2 the entire negligence 14 case against LYFT was in place prior to and independent of the individual driver assaults that triggered 15 the harm. 16 In this case, there are only two fact witnesses to the rape. The plaintiff is a witness and a party. 17 The only other witness is LYFT’s driver, Michael Senk.3 Given the Tacoma Police Department is 18 currently investigating the incident4 and that Mr. Senk may be subject to criminal charges, , he cannot be 19 compelled to testify in a civil trial– should he opt not to do so – without violating his constitutional 20 rights.5 In the unlikely event LYFT should ignore the rape kit and DNA evidence and contest the fact of 21 this rape, LYFT will not be a disadvantaged by virtue of the fact that the rape occurred in Washington. 22 There are no other non-party witnesses. LYFT’s references to Washington-based “third party 23 liability witnesses”6 are nothing more than conjecture. This is not a criminal rape case; it is a civil matter 24 revolving around LYFT’s corporate conduct. The witnesses identified by LYFT, including hypothetical 25 “friends” who “likely live in Washington,” “persons familiar with [plaintiff’s] daily life who likely also 26 reside in Washington” and law enforcement personnel, have little if anything to offer regarding LYFT’s 27 2 See Complaint attached to Abrams Dec. as Exhibit B. 3 28 Id. 4 See Declaration of Warren Metlitzky (“Metlitzky Dec.”) in support of LYFT’s Motion to Dismiss or Stay at ¶ 5(d). 5 U.S. Const. amend. V. 6 See LYFT’s Motion to Dismiss or Stay at p. 10; Metlitzky Dec. at ¶ 5(b)-(f). 2 Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 corporate liability.7 Aside from Plaintiff and LYFT’s driver, LYFT did not identify a single witness who 2 actually resides in Washington and who has information pertinent to the liability issues present in this 3 case. By contrast, there are a host of LYFT employee witnesses, former employee witnesses, and other 4 non-party sexual assault victims who were attacked by LYFT drivers and reported the same to LYFT 5 prior to the attack on Plaintiff, with relevant testimony who reside in California. See Section III below. 6 As the cases discussed herein demonstrate, the importance of witness location has receded 7 somewhat in favor of the more outcome-determinative question of which forum has a more compelling 8 interest in the litigation. Technological advancements – including electronic storage and production of 9 documents, videotaped depositions, appearing in court via Skype or another streaming service, etc. – 10 have made it easier to obtain out of state evidence and testimony.8 Consequently, the trend has been to 11 afford less weight to the convenience of the litigants in favor of the larger question concerning when it is 12 fair and appropriate to ask state courts and prospective jurors to entertain a particular piece of litigation. 13 This question, generally referred to as the “public interest” prong of the forum non conveniens 14 doctrine, asks whether California has a sufficient community interest in the litigation so that it makes 15 sense for the California courts and prospective jurors to devote their time and attention to the case. Here, 16 the community interest could not be more compelling. Not only is LYFT a high-profile California 17 corporation where the critical mass of its employees, offices, and drivers are located, but the problem of 18 sexual assaults committed by LYFT drivers has been receiving almost daily California press, radio, and 19 TV coverage.9 The relationship between LYFT and its drivers and issues of passenger safety are currently 20 the subject of robust public discussion and the focus of regulatory legislation in Sacramento. 21 The relationship of this case to California is evident, immediate, concrete, and compelling. LYFT 22 was born in California; used and continues to use the San Francisco Bay Area and its residents as a testing 23 ground for its various platforms including rideshare, bikes, scooters, and autonomous vehicles; conducts 24 all corporate business in San Francisco; is subject to legislation and other governmental regulation in 25 California; makes all corporate decisions in the State; and is facing numerous lawsuits in California from 26 7 27 Id. 8 See e.g. Cal. Code Civ. Proc. § 2025.310(a) (“A person may take, and any person other than the deponent may attend, a 28 deposition by telephone or other remote electronic means”); Cal. Rules of Court, rule 3.1010(a)-(b)(“Any party may take an oral deposition by telephone, videoconference, or other remote electronic means […and] [a]ny party may appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means”). 9 See sampling of local media cover regarding LYFT attached to Abrams Dec. as Exhibit D. 3 Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 both California and non-California plaintiffs stemming from sexual assaults committed by its drivers. To 2 suggest any forum other than California is more convenient or has a greater stake in regulating LYFT’s 3 conduct is belied by these facts. 4 Although this particular assault occurred within Washington’s borders by happenstance, it has 5 little or no interest in the corporate malfeasance of a California corporation which is the subject of mass 6 tort litigation in California State Courts. Therefore, this case should remain in California because its 7 center of gravity – and the center of gravity for all other cases filed against LYFT stemming from sexual 8 assaults committed by drivers – is California, the location of LYFT’s corporate headquarters. For these 9 reasons and all others contained herein, Plaintiff respectfully requests this Court deny LYFT’s Motion 10 or, in the alternative, stay its decision pending the Judicial Council’s decision on the Petition for 11 Coordination of cases filed in California against LYFT. 12 LEGAL STANDARD 13 A corporation is considered “at home” for purposes of general jurisdiction wherever it maintains 14 its principal place of business, such that any claim against the defendant may be brought there even if an 15 incident occurred in a different state.10 This court, then, unquestionably has jurisdiction over the parties 16 and the subject matter of Plaintiff’s claims. 17 Forum non conveniens is an equitable doctrine wherein a court may invoke its discretionary 18 power to decline to exercise the jurisdiction it has over a transitionary cause of action when it believes 19 that the action may more appropriately and justly tried elsewhere. The standard of review is whether 20 there was an abuse of discretion.11 California employs a two-step process when a forum non conveniens 21 motion is filed. First, the presiding court must determine whether the proposed alternative forum is a 22 suitable place for trial.12 If the answer to that question is in the affirmative, the court must consider the 23 “private interests of the litigants and the interests of the public in retaining the action in California.”13 In 24 other words, the court must analyze the competing interest of the two forums. 25 However, dismissal of an action based on forum non conveniens should be exercised with great 26 care. This is especially true when, as here, the plaintiff filed suit in the county of LYFT’s corporate 27 10 28 Bristol-Myers Squibb Co. v. Sup. Court of Cal. San Francisco County (2017) 137 S.Ct. 1773, 1780. 11 Stangvick v. Shiley Inc. (1991) 54 Ca.3d 744, 751. 12 Id. 13 Id. 4 Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 headquarters, in a court of proper statutory venue, in a court that can properly exercise jurisdiction over 2 the parties, and in a forum with sufficient connection to the controversy to justify the application of its 3 own laws. Further, a plaintiff’s choice of forum is “entitled to great weight even though the plaintiff is a 4 nonresident.”14 Only if the balance of the public and private factors is “strongly in favor of the defendant” 5 should a plaintiff’s choice of forum be disturbed.15 6 Over time, public interest factors have emerged as more outcome determinative than the private 7 interests of the litigants. The fact that it is not uncommon for witnesses to reside in more than one state 8 and the technological advancements that ameliorate some of the difficulties with respect to witness 9 location and allow for interstate discovery and testimony pushed the public interest factors for the 10 forefront of forum non conveniens analysis. Accordingly, Plaintiff provides an analysis as to the public 11 interest factors first and then turns to the private factors. Under either prong of the two-part test, 12 California is the superior forum. Since it is impossible to look at the public interest factors without also 13 reaching the issues with respect to judicial coordination of mass torts, Plaintiff begins with the question 14 of coordination. 15 ARGUMENT 16 I. There Is Significant Overlap as to Factors Considered when Coordinating Cases and 17 Those Addressed by a Forum Non Conveniens Motion 18 A Petition for Coordination seeking to coordinate all LYFT assault cases pending in California 19 was filed on September 4, 2019; the JCCP Number is 5061. At the time of this writing, there are thirty- 20 one cases subject to coordination, more than a third of which were brought by California plaintiffs.16 As 21 discussed herein infra, all of the criteria supporting coordination in California are in place. Assuming 22 arguendo that the Petition for Coordination is granted, California will be the forum and court that is best 23 suited to collectively and efficiently adjudicate Plaintiff’s claims and claims brought by other women. 24 Coordination of complex cases is permitted pursuant to § 404 of the California Code of Civil 25 Procedure and Rule 3.521 of the California Rules of Court. The purpose of coordination is the same as 26 14 27 Morris v. AGFA Corp. (2006) 144 Cal.App.4th 1452 15 Id. 16 28 See Petition for Coordination attached to Abrams Dec. as Exhibit A; see Class Action filed in San Francisco Superior Court on behalf of Jane Does 1-3 by James McKiernan Lawyers on July 24, 2019 attached to Abrams Dec. as Exhibit E; see complaint filed in San Francisco Superior Court on behalf of Jane Roes 1-14 by Estey & Bomberger LLP on September 4, 2019 attached to Abrams Dec. as Exhibit F. 5 Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 the forum non conveniens doctrine; to promote the ends of justice. Coordination of the instant case and 2 all other sexual assault cases filed against LYFT will achieve this goal for seven reasons: (1) the actions 3 require resolution of nearly identical factual and legal issues; (2) coordination will further the 4 convenience of the parties, witnesses, and counsel; (3) the only defendant, LYFT, is common to all 5 included actions; (4) defense counsel for defendants will likely be the same counsel of record for each of 6 the included actions; (5) all of the included actions are in the early stages of litigation, therefore no party 7 will be prejudiced or stalled by the coordination; (6) coordination will ensure judicial resources are used 8 efficiently; and (7) coordination will avoid duplicative and potentially inconsistent rulings and orders. 9 The attached chart17 demonstrates California is the only state in which multiple resident plaintiffs 10 brought suit against LYFT. The remainder of cases are scattered across the country, with every other 11 state being home to no more than three cases.18 Plaintiff expects this ratio to remain relatively constant 12 given LYFT’s strong and comparatively dominant presence in California.19 LYFT and Uber, another 13 transportation network company, account for “just above 13 percent of all vehicle miles traveled in the 14 Bay Area” which amounts to “1 in 8 and the highest ridesharing numbers of any major U.S. City.”20 15 While a single court hearing the claims of multiple plaintiffs would necessarily impose a burden 16 on that specific court, the overall judicial burden will be mitigated by coordination. This case and the 17 others pending against LYFT are complex and will involve the production of countless electronically 18 stored documents, necessitating the use of ESI orders. California’s court system is uniquely suited to 19 handle such cases via its Complex Civil Litigation Program. 20 A “complex case” is a civil action that requires “exceptional judicial management to avoid placing 21 unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and 22 promote effective decision making by the court, the parties, and counsel.”21 California’s complex civil 23 litigation program therefore seeks to achieve some of the same goals of concern in a forum non 24 conveniens motion; namely, ensuring trial is expeditious and relatively inexpensive and ensuring the 25 litigation will not overtax local courts. The alternative to coordination sought by LYFT (i.e. ad hoc 26 17 See List of cases pending against LYFT in California brought by both resident and non-resident plaintiffs attached to Abrams 27 Dec as Exhibit G. 18 Id. 19 28 See NBC Bay Area, Uber, LYFT Adding to Bay Area Traffic Congestion: Study, (Aug. 2019) attached to Abrams Dec as Exhibit H. 20 Id. 21 Cal. Rules of Court, Rule, 3.400(c). 6 Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 litigation in multiple forums) will result in substantial costs both to the parties and interstate judicial 2 system, the unnecessary duplication of work, and lead to inconsistent decisions on otherwise similar 3 procedural and substantive issues. 4 II. The Public Interest Factors Weigh in Favor of California Because of the Pending 5 Petition for Coordination, Because of LYFT’s Long-Standing and Pervasive Presence in California, and Because LYFT Will Necessarily Litigate Cases Brought 6 by California Plaintiffs Involving Identical Theories of Liability 7 No forum has more of a vested interest in the regulation of LYFT than California. The public 8 interest factors to be considered under forum non conveniens analysis are “avoidance of overburdening 9 local courts with congested calendars, protecting the interests of potential jurors so they are not called 10 upon to decide cases in which the local community has littleconcern, and weighing the interests of 11 California and the alternate jurisdiction in the litigation.”22 Taking the aforementioned factors in turn, 12 each weigh in favor of keeping the case in California. 13 Regarding court congestion, and as discussed in § I supra, there is a pending Petition for 14 Coordination that will greatly reduce any burden this case may or may not impose on California’s court 15 system. Regarding factor two – the interest of potential jurors – the San Francisco community has a 16 significant interest in the regulation of and actions taken by LYFT given its longstanding and pervasive 17 presence in California. LYFT launched in San Francisco on May 22, 2012,23 rendering San Francisco 18 residents the veritable testing ground for LYFT’s firstand signature transportation service. In 2017, 19 LYFT announced a partnership with another company, Drive.ai, whose headquarters are in Mountain 20 View, California, wherein LYFT launched a fleet of self-driving cars in San Francisco.24 This move 21 again rendered San Francisco residents LYFT’s petri dish for another business venture. 22 In addition to testing its new products on California citizens, LYFT touches the lives of 23 innumerable Californians daily by way of traffic congestion. A 2018 study published by San Francisco 24 City Hall found LYFT and other transportation network companies were responsible for 50% of the 25 uptick in San Francisco traffic congestion from 2010-2016.25 A similar study found LYFT and other 26 22 Stangvik, supra, 54 Cal.3d at 751. 23 27 See Greiner et al., A History of LYFT, From Fuzzy Pink Mustaches to Global Ride Share Giant, CNN Business, available at https://www.cnn.com/interactive/2019/03/business/lyft-history/index html (March, 2019)(last visited Sept. 15, 2019). 24 28 Id., see also Alex Davis, LYFT is Launching a Fleet of Self-Driving Cars in San Francisco, Wired (Sept. 2019) attached to Abrams Dec. as Exhibit I. 25 See San Francisco County Transportation Authority, TNC and Congestion, (October 2018) attached to Abrams Dec. as Exhibit J. 7 Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 transportation network companies are associated with “worsening travel time reliability,” that 2 transportation network companies are “the biggest factor driving rapid growth of congestion and 3 deterioration of travel time reliability in San Francisco…exceeding the combined effects of population 4 growth, employment growth, and network changes.”26 The study concluded the information is “of 5 interest to transportation planners, policy makers, and to the general public in San Francisco.”27 It further 6 concluded it is “in the public interest that decisions about the regulation” of LYFT and other 7 transportation network companies “be based on independent and peer-reviewed analysis.”28 8 These findings are unsurprising given rideshare vehicles have a bigger presence in the San 9 Francisco Bay Area than any other major U.S. City.29 LYFT’s presence in California is so pervasive that 10 former San Francisco Mayor Ed Lee declared Saturday, July 23, 2013 “LYFT Day.”30 California was 11 also the first state to form a “Sharing Economy Working Group,” the first of its kind in the United States, 12 “to take a comprehensive look at the economic benefits, innovative companies and emerging policy 13 issues around the growing ‘sharing economy.’”31 14 California is also home to 275,000 LYFT and other transportation network drivers,32 the home of 15 protests involving LYFT that drew national attention, including the attendance of presidential hopeful 16 Pete Buttigieg,33 and the site of legislation involving LYFT’s employment relationship with its drivers.34 17 All of these facts demonstrate LYFT is not only at home in California, but that its presence is felt by 18 nearly every California citizen, from the general public to the California legislature. California’s interest 19 in the present case is undoubtedly bolstered by the fact that a disproportionate number of California 20 residents have suffered similar assaults.35 A rash of local media attention occurred upon filing of this 21 case, and others, against LYFT.36 LYFT does not have as enduring and widespread a presence in 22 26 See Erhardt et al.,Do transportation network companies decrease or increase congestion?, Science Advances (Sept. 23 2019).included in Exhibit J to Abrams Dec. 27 Id. 28 24 Id. 29 See NBC Bay Area Report, supra n. 8. 30 25 See LYFT Blog, LYFT Day In San Francisco (July 2013) attached to Abrams Dec. as Exhibit K. 31 See J.B. Wogan, How Will the Sharing Economy Change the Way Cities Function? (October 2013) attached to Abrams 26 Dec. as Exhibit L. 32 See San Francisco Chronicle, Buttigieg joins Uber, LYFT drivers in San Francisco gig-work protest (Aug. 2019) attached 27 to Abrams Dec. as Exhibit M. 33 Id. 34 28 See San Francisco Chronicle, California legislature passes AB5 gig-work bill, which could turn contractors into employees (Aug. 2019) attached to Abrams Dec. as Exhibit N. 35 See Chart of cases pending against LYFT in California supra n. 6. 36 See sampling of local media cover regarding LYFT attached to Abrams Dec. as Exhibit D. 8 Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 Washington. 2 Finally, and with respect to factor three, weighing the interests of California and Washington in 3 the litigation, Plaintiff asserts the aforementioned facts taken in conjunction with the pending Petition for 4 Coordination foreclose any argument that Washington has more of an interest in the litigation than 5 California. LYFT will necessarily litigate sexual assault cases in California; it has no basis for a forum 6 non conveniens motion in matters brought by California residents. As such, California will devote 7 judicial resources to cases involving the exact same theories of liability brought by the Plaintiff. 8 Washington courts on the other hand – should Plaintiff be required to refile her suit there – will be 9 burdened with litigating a complex, standalone case where the factual and legal issues overlap with those 10 pending in California. 11 LYFT’s Motion should be seen for what it is: an attempt to remove Plaintiff’s claim from a 12 jurisdiction that is traditionally plaintiff friendly. The Stangvick court warned against such tactics, stating 13 courts should be aware of “reverse forum shopping by defendants, seeking to take advantage of, or to 14 resist of the advantage of, laws favorable to the plaintiff in the jurisdiction suit is filed.”37 Plaintiff sued 15 LYFT in its home forum; a state which inarguably has a vested and heightened interest in the regulation 16 of LYFT because LYFT began in the San Francisco Bay Area; has and continues to use the San Francisco 17 Bay Area as the testing ground for its platform and multiple business ventures; is the epicenter of its 18 corporate decision making; is the home of its management level employees and board members; and is 19 the home state of more than one third of the plaintiffs whose cases are subject to the Petition for 20 Coordination. Plaintiff could not have brought suit in a more convenient forum. For all of these reasons, 21 the public interest factors weigh heavily in favor of California. 22 III. The Private Interest Factors Weigh in Favor of California 23 Private interest factors revolve around the convenience of the parties to the litigation. The factors 24 considered are those that “make trial and the enforceability of the ensuing judgment expeditious and 25 relatively inexpensive” including “the ease of access to sources of proof, the cost of obtaining attendance 26 of witnesses, and the availability of compulsory process for attendance of unwilling witnesses.”38 No 27 28 37 Stangvick, supra, 54 Cal.3d at 762. 38 Id. at 751. 9 Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 single factor should be considered in isolation.39 2 Both Plaintiff and LYFT will have out-of-state witnesses to call at trial,regardless of venue. 3 However, LYFT’s attempt to frame the instant action as one requiring multiple out of state witnesses – 4 including law enforcement, medical personnel, its driver, and hypothetical acquaintances and friends of 5 Plaintiff – is inaccurate. The only two witnesses to the rape giving rise to suit are Plaintiff and Mr. Senk. 6 Plaintiff will voluntarily appear for trial.40 The degree of Mr. Senk’s involvement will be likely be 7 determined by the outcome of the pending criminal investigation. 8 As for non-party witnesses, all of the individuals Plaintiff has spoken to regarding the rape and 9 its affect on her daily life will voluntarily appear for trial.41 LYFT did not identify a single, non- 10 hypothetical witness it would need at trial to lodge a complete defense. The law enforcement proceedings 11 are not part of the civil case, and there is no good faith contention that law enforcement and medical 12 personnel are necessary to dispute the fact of the underlying rape. Further, law enforcement and medical 13 personnel cannot testify as to the liability issues present here: namely, LYFT’s corporate conduct. 14 Alleging undue hardship because LYFT cannot compel unidentified, theoretical persons who may or may 15 not reside in Washington to testify at trial is insufficient to tip the scales in favor of Washington. 16 Additionally, the cases LYFT relied on in support of its assertion that compelling witnesses to 17 testify is only possible in Washington do not, upon close examination, support that assertion. The cases 18 are also factually distinguishable from the case at bar. In Hahn v. Diaz-Barba, the plaintiff, a German 19 citizen residing in Switzerland and Mexico and owner of a Mexican business, brought suit in California 20 against Mexican and Spanish citizens residing in San Diego County.42 The underlying case involved 21 breach of contract and a bankruptcy proceeding.43 Defendants brought a forum non conveniens motion 22 that was granted by the trial court and affirmed by the Court of Appeals because the courts found keeping 23 the case in California would require defendants to bring numerous Mexican witnesses, government 24 officials, and legal and economic experts to the U.S.44 25 The present case does not involve foreign parties or the import of foreign witnesses, government 26 39 Id. at n.4 [“An undue emphasis on a single factor is especially threatening to a balanced analysis because some of the 27 matters to be weighed will by their nature point to a grant or denial of the motion”.] 40 See Declaration of Jane Doe attached to Abrams Dec. as Exhibit C. 41 28 Ibid. 42 Hahn v. Diaz-Barba, (2011) 194 Cal. App. 4th 1177. 43 Id. 44 Id. 10 Pltf’s Memorandum of Points and Authorities in Opp to Def LYFT’s FNC Motion to Dismiss or Stay 1 officials, or experts. LYFT’s assertion that it will need to subpoena multiple Washington witnesses to 2 California is unfounded because the witnesses LYFT identified consist primarily of police officers who 3 investigated the rape and medical professionals who conducted Plaintiff’s rape kit. LYFT may have a