Motion-Secondary: IDA CHRISTINA FUA CRUZ VS. JOEL ENRIQUE ANDINO SANCHEZ et al

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TODD P. EMANUEL (SBN 169301)

DEIRDRE O'REILLY-MARBLESTONE (SBN 88008)

EMANUEL LAW GROUP
702 Marshall St., Ste. 400
Redwood City, CA 94063
Telephone: (650) 369-8900
Facsimile: _ (650) 369-4228
Email: todd@teinjurylaw.com

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

12/21/2015
Clerk of the Court
BY:ROMY RISK

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO — UNLIMITED JURISDICTION

IDA CRISTINA CRUZ FUA,
Plaintiff,
v.

JOEL ENRIQUE ANDINO SANCHEZ, and
individual; CAROLINE MILLER, an
individual; TAX] EQUIPMENT LEASING
LLC, a Limited Liability Company; SAN
FRANCISCO INDEPENDENT TAXI
ASSOCIATION, a Corporation; YELLOW
CAB COOPERATIVE, INC., a Corporation;
and DOES 1 through 50, Inclusive,

Defendants.

CASE NO.: CGC-11-515542

PLAINTIFF’S MEMORANDUM OF POINTS
AND AUTHORITIES IN OPPOSITION TO
DEFENDANT’S MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT

Date: January 12, 2016

Time: 9:30 a.m.

Dept.: 608

Judge: Honorable Garrett Wong

PLAINTIFFF’S MPA IN OpP TO DEFENDANT’S JNOV MoTION — Case No. CGC-11-515542=

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TABLE OF CONTENTS

TABLE OF CONTENTS......... 2. ccc cccceccccectecesnee cesses cent see seeeseceeeestnneesetaaeaeesneneeanes i}.

TABLE OF AUTHORITIES.

I. INTRODUCTION
ll. Argument...
A.

B.

Yellow Cab Inc.’s argument runs afoul of common sense and public policy............ 4

Sanchez did not have to be Yellow Cab Inc.’s employee in order for him to

have ostensible authority as Yellow Cab Inc.'s agent... eeeccseseseseseseseseteteeeee 3
. The ostensible agency and authority of so-called independent taxi-drivers

have long been recognized. oo... esseceeseeesetseeneeeeeeessceeeeeeeeneseseeneeesesteceesesenenenaee! 4

. Fua needs to show only that she did or could have reasonably believed she

was entering a licensed taxi such as a Yellow Cab taxi. .

E. Yellow Cab Inc cannot benefit from Fua’s memory lapse caused by the
driver of a YelOW Cab. oo... csceccessessesseseereseeresersesesseessaseaseneseseneassameeneseneecaneeteneeteess 7

F. Fua’s reliance on Sanchez’s ostensible agency can be shown by evidence of
Fua’s CUSTOM OF NADIE. oc esesces sess eseesresentensenesessesesnessseencaneesenecaneanesnesesneanensens 10

G. The evidence showed that Fua had a custom or habit of riding only in
reputable taxis. oc. c cece ceeicsseesueseastsesbececvndbebscetencabaeesseenseseeeseacesaneaeetetensesenees 11

H. Yellow Cab Inc. ignores the standard required for granting judgment
notwithstanding the Verdict... ccccesseseeecsesssecseseeeesecesseaeieensneseneesesecesaeereetene 14
TEE COA ooo oeeeceeee rence dd tlaldat cudnt sleet sta saat eteraetaballerscebalsi 15

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PLAINTIFFF’S MPA IN OPP TO DEFENDANT’S JNOV MOTION — Case No. CGC-11-515542=

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TABLE OF AUTHORITIES

CASES
Associated Creditors’ Agency v. Davis
(1975) 13 Cal.3d 374... cece eens sseenensescessseenabeasssacsasensncesecsucnsousnenseeatenencaend 5

Berwick v. Uber Technologies, Inc
San Francisco Superior Court Case No. CGC-15-546378; oo... eccseeeseneeeeseeeeeee 3

Butigan v. Yellow Cab Co.
(1958) 49 Cal.2d 652, 657... ce cecccecscsserssescsessscsesseasseeneecsnsnsasnesesesarseseeseesetees 7

Channel Lumber Co. v. Porter Simon
(2000) 78 Cal.App.4th 1222, 1230 ..

City of Los Angeles v. Meyers Brothers Parking System, Inc
(1975) 54 Cal. App.3d 135 o....ccccessesscseseseseseeseesssrsareareasenssssssesseaseeneseeasensaeaneeneeeeeed 4

Clemmer v. Hartford Insurance Co.
(1978) 22 Cal.3d 865, 877-878 ......ccccccssccsssscssescssesssssseestseccssssessssecsensessasecseneeesaseess 14

DaimlerChrysler Corp. v. Hillhouse
(Tex.Civ.App. 2004) 161 S.W.3d 541 oo Aedebataladc chal debglleleladelet dela 9

Dimond v. Caterpillar Tractor Co.
(1976) 65 Cal.App.3d 173, 0.0... escseeeseseeseeescensneacsnsssansneasseseesesatseseesnienienes freee 7

Dincau v. Tomayose
(1982) 131 Cal.App.3d 780, 794-795 oo... eseeeeeteesesaenesendees ante 10

Elmore v. American Motors Corp.
(1969) 70 Cal.2d 578.0... cccsceececsceecescceeecseneecenensarsnssatncacseseneesansesseanseneeaneceeeese 8

Fairchild v. The California Stage Co.
(1859) 13 Cal. 599, 604.)

Haft v. Lone Palm Motel
(1970) 3 Cal.3d 756)... ccccscsesesseessesesssesnescessesesassessssnseceeesesatereesseeetes 8, 10, 14

Hansen v. Sunnyside Products, Inc.
(1997) 55 Cal.App.4th 1497 ...

House v. Armour of America, Inc.

(Utah 1996) 929 P.2d 340 ooo. eeeee eee ceeeeeeneecesseeececseaceneasasenenseracansneeeee cote 9
In re Deborah C.
(1981) 30 Cal.3d 125, 141 oo. eeee es esescascserentesseeescsntssscenescrisseseeeetensetens 2
lie

PLAINTIFFF’S MPA IN OPP TO DEFENDANT’S JNOV MOTION ~ CASE No. CGC-11-515542oo ODN OD TO F&F WY DY

In re Charles G.

(1979) 95 Cal. App.3d 62, 64-66 0... censeeeseneeeaeeeseesesssesnesnseeneeseneneaes 10
Kaplan v. Coldwell Banker Residential Affiliates, Inc.

(1997) 59 CalApp.4th 741 oo. c ec eeceesceceesscenerestensesacseauseeseeesesnesteseneseeneeeens 3
Liu v. Uber Technologies, Inc.

San Francisco Superior Court Case No. CGC-14-536979 ooo... ee eeeeeeeeeeeeeeeeeeeeee 3
Mejia v. Community Hospital of San Bernardino :

(2002) 99 Cal.App.4th 1448 ooo. ceeeeneeeeeneseeeeeseeseseeteeseneeneeseeane 5, 6, 14

Middleton v. Frances
(Ky. 1934) 77 S.W.2d 425, 426...

Phillippe v. Shapell Industries, Inc.
(1987) 43 Cal.3d 1247... ccc ceceecesneseecscesssesnsesnearenesssesssesssnssnesneeeeereaneeeseeeten 2

Rhone v. Try Me Cab Co.
(D. D.C. 1933) 65 F.2d 834, 836.) 0... cccsecceeneeesssnseeseseeeenesssreeeseseeersneseveneseeses 4,7

Schutte v. Celotex Corp.
(Mich.Ct.App. 1992) 492 N.W.2d 773.....ccccsccsssesessestesteseeseseesessesnseeeeteatecesesseeeeanense 9

Technical Chemical Co. v. Jacobs
(Tex. 1972) 480 S.W.2d 602 oo. ceeeccccesceeseneeseseeseesesneerereeseeeereseesessesteenteversentennenenes 9

Teitel v. First Los Angeles Bank
(1991) 234 Cal.App.3d 1593 oo. ccecccseccetssceeeesessesseneseereeceseeeessseeeetececeneeereneenes 14

Tennant v. Peoria & Pekin Union Railway Co.
(1944) 327 U.S. 29 iss csssiacescetenssversteennesenenpesssstnesnecotpecegeveadevensneassonesnesseseaieneed 8

Vandermark v. Ford Motor Co.
(1964) 61 Cal.2d 256, 2600.00... eee nee ceseseerencerscsesienssestenssnseecdesnseaseeaed 8

Whitlow v. Rideout Memorial Hospital
(2015) 237 Cal.App.4th 631 ....cccccsscssssssessssecssseesessseessssneessseessseccnsaeeeseveees 6, 9, 10, 14

Yellow Cab Cooperative, Inc. v. Workers’ Comp. Appeals Bd.
(1991) 226 Cal.App.3d 1288 ....

Youst v. Longo

(1987) 43 Cal.3d 64... ccccssessssssssssssteneesesssessuecunseneesesseessesesssssestsesenasenteseee 1
CODES
Civil Code
oO CC ee TT a ee SE A eae eee 3
-ili-

PLAINTIFFF’S MPA IN Opp To DEFENDANT’S JNOV Motion — CASE No. CGC-11-515542o20 Oo ON OO FF BO HY =

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§§ 2100 & 21GB oa eccececscsssessscssessssesseesssenssssesssesssueseevesisnsuvessesssssessesessuananensessesesee 7

San Francisco Transportation Code
Div. Hy Art. § 1100. esneeneseeceaseseesenesseameeteeneneneneensseesesasisenaenenn 11
Div. UW, Art. § 1102. eee eeeececeeeeeceeeeeeeeeseseeeceesecaceeseneesseeseeavseeevateesenaneneenaeieees 11

Restatement of Second Agency

SECONDARY AUTHORITIES

2 Jefferson, Cal. Evidence Benchbook
(Cont.Ed.Bar 2014) § 35.64, p. 35-50 oo. eee es eee ne teeeeeeeeeeeesneneneeeereeee 11

Aaron Twerski & Neil CohenResolving the Dilemma of Nonjusticiable Causation in Failure-
to-Warn Litigation
(2010) 84 So. Cal. L.Rev. 125, 144.) oo. ccc cesceeeserseseseenereneeceesteeescsneneeeeeeee 9

Annot., Presumption or Inference, in Products Liability Action Based on Failure to Warn,

That User Would Have Heeded an Adequate Warning Had One Been Given
(1996) 38 A.L.R.5Sth 683.) ....cssccescessesesseeseeeseesessesnssssesnssearsersstesessneseseateassatancereeeeas 9

vive

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I INTRODUCTION

Defendant Yellow Cab Cooperative, Inc. (Yellow Cab) asks this court to set
aside the jury's verdict on the ground that a prospective passenger such as plaintiff Ida
Fua is unreasonable in thinking that drivers of taxis with Yellow Cab’s full and well-
known livery, e.g., name and colors, have any relationship with Yellow Cab. As Yellow
Cab sees the matter, the public should assume that drivers of Yellow Cabs are virtual
strangers to defendant Yellow Cab.

To accept this argument would require the court to suspend its common sense
and to create unsound public-policy. The court would also have to ignore the evidence
presented at trial. Defendant Yellow Cab’s argument is also devoid of legal authority.
Yellow Cab cites not a single California case in which Yellow Cab or another licensed
taxi-company has evaded liability on the ground that the driver was not an employee or
agent of the company. And Yellow Cab Inc. seeks to benefit from Fua’s mental inability
to recall the specifics of the taxi crash, an inability that the crash itself caused, by

imposing on Fua a burden of proof that is not required.

I. ARGUMENT

Before turning to specifics, two general observations are in order. First, Yellow
Cab’s argument is disingenuous. In this court, Yellow Cab disavows that it has any
drivers. But it tells the public just the opposite. Its website touts that “The wonderful
diversity of San Francisco is reflected in our drivers.”
( as of Dec. 8, 2015, emphasis added, see Exhibit
1, to the declaration of Todd P. Emanuel.) And Yellow Cab, Inc. broadcasts that
message even more widely by allowing taxi drivers to operate on the streets of San
Francisco in taxis fully marked and painted as Yellow Cabs.

Second, Yellow Cab’s argument has been so soundly rejected for so long that it
is used as an example in the Restatement Second of Agency. (See discussion at pp. 5-
6, post.) The argument is no better than when it was first offered and rejected decades
ago.
A. YELLOW CAB INC.’S ARGUMENT RUNS AFOUL OF COMMON

SENSE AND PUBLIC POLICY.

“Courts must be guided by considerations of common sense, justice and fair play
when making public policy determinations.” (Youst v. Longo (1987) 43 Cal.3d 64, 77.)

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Viewing Yellow Cab’s argument through the proper lens of common sense and public
policy shows why the argument fails legally and factually.

First, it lacks common sense. No normal person on a San Francisco street who
hails a cab interrogates the driver to determine whether he is an employee or agent of
the company whose livery is on the cab, e.g., a Yellow Cab. One can only imagine how
such an interrogation would proceed. A curb is not a courtroom. The likely real-world
result is that the driver would simply leave the prospective standing passenger at
curbside. So, as a matter of common sense, a driver in a Yellow Cab is reasonably
assumed to be an authorized driver acting either as an employee or agent of Yellow
Cab. This situation calls to mind the Supreme Court’s common sense observation that,
“If an object looks like a duck, walks like a duck and quacks like a duck, it is likely to
be a duck.’” (Phillippe v. Shapell Industries, Inc. (1987) 43 Cal.3d 1247, 1256, quoting
In re Deborah C. (1981) 30 Cal.3d 125, 141 [conc. opn. of Mosk, J.].)

Similarly useful are the common-sense observations and legal conclusions by
the First District Court of Appeal in San Francisco regarding how Yellow Cab Inc.
operates. (Yellow Cab Cooperative, Inc. v. Workers’ Comp. Appeals Bd. (1991) 226
Cal.App.3d 1288.) In that case, the question was whether a driver was a Yellow Cab
Inc. employee for the purposes of workers’ compensation benefits. But the court's
observations are equally applicable to the present case.

It [Yellow Cab Inc.] did not simply collect rent [from the drivers],
but cultivated the passenger market by soliciting riders,
processing requests for service through a dispatching system,
distinctively painting and marking the cabs, and concerning itself
with various matters unrelated to the lessor-lessee relationship. . .
{| We follow courts elsewhere in holding that Yellow’s enterprise
consists of operating a fleet of cabs for public carriage. [Citations
omitted.] The drivers, as active instruments of that enterprise,
provide an indispensable ‘service’ to Yellow; the enterprise could
no more survive without them than it could without working cabs.

(Id., at pp. 1293-1294.)

Second, one would have to ignore a fundamental irony in Yellow Cab’s
argument. As this court is well aware, technological innovation is dramatically changing
the use of public automobile-transportation. There are now two broad and competing
types of transportation: traditional taxi-companies such as Yellow Cab and upstarts
such as Lyft and Uber. The latter adamantly disclaims any responsibility for their
drivers, as illustrated by two actions now pending in this court. One arises from a death

2
PLAINTIFFF’S MPA IN Opp TO DEFENDANT’S JNOV MoTION — Case No. CGC-11-515542of a child run over by an Uber driver. (Liu v. Uber Technologies, Inc.; San Francisco
Superior Court Case No. CGC-14-536979; Uber’s Answer to Complaint, filed May 1,
2014.) The other is Uber’s appeal from a ruling by the California Labor Commission that
Uber’s drivers are its employees. (Berwick v. Uber Technologies, Inc.; San Francisco
Superior Court Case No. CGC-15-546378; Notice of Appeal, filed June 16, 2015, from
Labor Commission Order dated June 3, 2015.)*

Time will tell whether Uber will prevail. But what is now clear is that the public, at
least a significant portion of it, sees Uber very differently from traditional taxi-providers
such as Yellow Cab. And such providers, including Yellow Cab want to be seen as
better as better and safer. But in this court, Yellow Cab portrays itself as being no
different from Uber and similar upstarts.

B. SANCHEZ DID NOT HAVE TO BE YELLOW CAB INC.’S EMPLOYEE

IN ORDER FOR HIM TO HAVE OSTENSIBLE AUTHORITY AS
YELLOW CAB INC.’S AGENT.

“An agent is one who represents another, called the principal, in dealing with

third persons. Such representation is called agency.” (Civ. Code § 2295.) “An agency is
ostensible when the principal intentionally or by want of ordinary care, causes a third
person to believe another to be his agent who is not really employed by him.” (Civ.
Code, § 2300.) Similarly, “Ostensible authority is such as a principal, intentionally or by
want of ordinary care, causes a third person to believe the agent to possess.” (Civ.
Code, § 2300.) “Whether ostensible agency exists “is a question of fact... and may be
implied from circumstances.” (Kaplan v. Coldwell Banker Residential Affiliates, Inc.
(1997) 59 Cal.App.4th 741, 748, ellipses in the opinion.)

A person such as driver Joel Sanchez need not be a Yellow Cab Inc. employee
in order for Yellow Cab to be liable for Sanchez’s negligence. Even if Sanchez was an
independent contractor, Yellow Cab Inc. was properly held liable by the jury because
Sanchez was Yellow Cab’s ostensible agent for the purpose of transporting members of
the public, including Fua. More specifically, “Agency and independent contractorship
are not necessarily mutually exclusive legal categories as independent contractor and
servant or employee are. In other words, an agent may also be an independent
contractor. (See, Rest.2d Agency (1958) § 2, com. b, pp. 13-14.) One who contracts to
1 As this Court may recall, the Labor Commission issued its order in Berwick v. Uber
Technologies, inc. during the trial of the present case.

3:

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act on behalf of another and subject to the other's control, except with respect to his
physical conduct, is both an agent and an independent contractor. (/d., § 14N, p. 80.)”
(City of Los Angeles v. Meyers Brothers Parking System, Inc. (1975) 54 Cal.App.3d
135, 138; accord, Channel Lumber Co. v. Porter Simon (2000) 78 Cal.App.4th 1222,
1230.)

c. THE OSTENSIBLE AGENCY AND AUTHORITY OF SO-CALLED
INDEPENDENT TAXI-DRIVERS HAVE LONG BEEN RECOGNIZED.

Ostensible agency has long been recognized in the context of a taxi company’s
liability to its passengers. As set forth in the Restatement Second of Agency
(Restatement):

P, a taxicab company, purporting to be the master of the drivers
of the cabs, in fact enters into an arrangement with the drivers by
which the drivers operate independently. A driver negligently
injures T, a passenger, and also B, a person upon the street. P is
not liable to B. If it is found that T relied upon P as one furnishing
safe drivers, P is subject to liability to T in an action of tort.

(Rest.2d Agency, § 267 com. a, illus. 1.)
Likewise, the Restatement explains the rule with the following example:

The Ace Taxi Company employs no drivers but merely receives
orders from prospective passengers and puts ‘Ace Taxi Company’
on cabs owned and operated by independent drivers. One of
these drivers collides negligently with another automobile,
damaging one of his passengers who reasonably believed the
Taxi Company to be the employer. The Taxi Company is liable to
the passenger but not to the owner of the other vehicle.

(Rest.2d Agency, § 8, com. e, illus. 11.)

The present case, in which Yellow Cab allowed Joel Sanchez to operate under
Yellow Cab.'s auspices, fits clearly and precisely within this well-established rule. As
one court long ago explained in rejecting the same argument that Yellow Cab now
makes,

Has not the People’s Taxie [sic] Company by allowing Harris [the
driver] . . . to cruise about over the city with the name ‘Peoples
Taxi-cab Company’ displayed upon it—though it be admitted he
was doing all this for Ashley [the car's owner]— been guilty of
such want of ordinary care . . .as to make Harris its agent as to
third parties who perhaps took passage with him as a result of the
appearances it allowed him to make? We think it has. Such
seems to be the rule. See Section 267, Restatement of the Law of
Agency.”

(Middleton v. Frances (Ky. 1934) 77 S.W.2d 425, 426; accord, Rhone v. Try
Me Cab Co. (D. D.C. 1933) 65 F.2d 834, 836.)

“4:

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Yellow Cab offers no reason why this Court should depart from decades of
mainstream, nationwide precedent that is fully consistent with California principles
regarding ostensible agency, as Fua will now show.

D. FUANEEDS TO SHOW ONLY THAT SHE DID OR COULD HAVE

REASONABLY BELIEVED SHE WAS ENTERING A LICENSED TAXI
SUCH AS A YELLOW CAB TAXI.

To impose liability against a principal under the doctrine of ostensible agency,

three elements must ordinarily be established. “The person dealing with the agent [e.g.,
Fua] must do so with belief in the agent's authority and this belief must be a reasonable
one; such belief must be generated by some act or neglect of the principal sought to be
charged; and the third person in relying on the agent’s authority must not be guilty of
negligence.” (Associated Creditors’ Agency v. Davis (1975) 13 Cal.3d 374, 399.) Yellow
Cab does not dispute that it permitted the cab in which Fua was injured to be marked
as a Yellow Cab. And Yellow Cab does not dispute that a passenger entering into a
Yellow Cab could and would reasonably believe that it was a Yellow Cab taxi. Indeed,
what is the point of marking cabs as being Yellow Cabs if Yellow Cab does not want
prospective passengers to believe the cabs are Yellow Cab’s cabs?

Rather, Yellow Cab argues that Fua did not specifically testify that she believed
the Yellow Cab being driven by Sanchez was a Yellow Cab taxi. That argument fails for
two reasons. First, the requirement that the third party, e.g., Fua, must have believed in
the agent's authority does not necessarily mean the plaintiff must testify to her
personal, i.e., subjective, belief regarding ostensible agency. Second, even if such
testimony were otherwise required, it is not required when the plaintiff is rendered
unable to testify to her belief by the negligence that gives rise to her action. In this
section, Fua will first address the general rule. She will then address her lack of
memory. (See, pp. 9-12, post.)

The absence of any requirement for the plaintiff's own testimony is illustrated by
the analogous situation when a person goes to a hospital emergency-room for medical
care. Physicians who work in hospitals are commonly independent contractors, and
hospitals sometimes contend this shields them from liability for a physician’s
negligence. But this view has been rejected. “A hospital is deemed to have held itself
out as the provider of care unless it gave the patient contrary notice.” (Mejia v.
Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1454, italics

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added.) More importantly for the present motion, it has been held that “The second
element [of ostensible agency], reliance, is established when the plaintiff ‘looks to’ the
hospital for services, rather than to an individual physician.” (/bid.)

Very recently, after the jury's verdict in the present case, the Third District Court
of Appeal elaborated on Mejia, supra, 99 Cal.App.4th 1448, and rejected a hospital's
claim that a physician was not its ostensible agent. (Whitlow v. Rideout Memorial
Hospital (2015) 237 Cal.App.4th 631.) The Whitlow court explained, “ ‘Effectively, all a
patient needs to show is that he or she sought treatment at the hospital, which is
precisely what plaintiff alleged in this case. Unless the evidence conclusively indicates
that the patient should have known that the treating physician was not the hospital's
agent, such as when the patient is treated by his or her own personal physician, the
issue of ostensible agency must be left to the trier of fact.’” (/d., at p. 637, quoting
Mejia, supra, 99 Cal.App.4th at p. 1458.)

That same logic applies to the present case. Fua looked to the cab company
itself rather than to Sanchez or any particular person to provide her with transportation.
And her custom and habit were to always use reputable cabs, i.e., those operated by
companies. (See discussion at pp. 11-13, post.) Like the patient who goes to a hospital
emergency-room for treatment with no idea which physician or nurse will treat her, Fua
had no clue that Sanchez would be her driver. Indeed, until she entered the taxi, Fua
had no knowledge of Sanchez, i.e., he was entirely anonymous to Fua. And just as the
hospital patient is entitled to assume that the physician is working for or under the
authority of the hospital, Fua was entitled to a reasonable belief that driver Sanchez
was operating under the authority of a licensed taxi-company, i.e., that a cab plainly
marked as a Yellow Cab was being operated under the authority of Yellow Cab.

Whitlow, supra, 237 Cal.App.4th 631, merits note in another respect. The court
observed that “The provision of medical services in an emergency implicates the public
interest.” (/d., at p. 639.) So does the provision of carriage-for-hire to the general

public. Indeed, common carriers, including taxi operators such as Yellow Cab and its

2 That the emergency-room cases are analogous to taxi cases is illustrated by a Georgia

Supreme Court case that, like the California courts in Mejia, supra, 99 Cal.App.4th 1448, and
Whitlow, supra, 237 Cal.App.4th 631, held that a hospital could not evade liability merely by
claiming that physicians in its facility were not its ostensible agents. (Richmond County Hospital
Authority v. Brown (Ga. 1987) 361 S.E.2d 164, 166, citing the taxi example in the Restatement
Second of Agency, § 267 com. a, illus. 1, discussed above at pp. 5-6.)

6

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drivers, are held to the utmost degree of care. (Civ. Code, §§ 2100 & 2168; Butigan v.
Yellow Cab Co. (1958) 49 Cal.2d 652, 657; Fairchild v. The California Stage Co. (1859)
13 Cal. 599, 604.)

This public policy should preclude Yellow Cab from hiding behind a self-created
invisibility cloak, i.e., a claim that Yellow Cab exists only as a name with no relationship
to its drivers. Indeed, the unsound public-policy advocated by Yellow Cab has long
been noted and should continue to be heeded. As one could put it more than 80 years
ago in rejecting the same argument Yellow Cab now resurrects:

For we now have in Washington [the nation’s capital] hundreds
of taxicabs engaged—very literally—in a public calling;
performable only upon the public streets under public license;
holding out to the public an illusion of incorporated responsibility
which they do not possess; painted, named, and numbered to
heighten that illusion; each cab constituting a potential danger
both to its passengers and to the public, yet having no financial
responsibility to either beyond an equity of redemption in some
used motor car.

(Rhone v. Try Me Cab Co. (D. D.C. 1933) 65 F.2d 834, 836.)
So too here. Yellow Cab created that illusion. Yellow Cab must be bound by that
illusion.
E. YELLOW CAB INC CANNOT BENEFIT FROM FUA’S MEMORY LAPSE
CAUSED BY THE DRIVER OF A YELLOW CAB.
Yellow Cab seeks to profit from Fua’s inability to testimony to precisely what she

thought or believed when she accepted a ride in the cab driven by defendant Sanchez.
But of course, Fua’s mental limitation in that regard is solely a result of the crash. To
require a plaintiff to testify with precise recall in that circumstance would preclude
recovery by the victims most egregiously injured by the absence of a warning: those
who are killed or otherwise rendered unable to testify, e.g., those such as Fua with
catastrophic brain-injuries. This is nonsensical and unjust. Thus, California courts have
made clear in such situations that a plaintiff need not specifically testify to what she
cannot remember.

The issue has often arisen in the analogous situation in which the plaintiff's injury
or death has precluded her from testifying that she would have heeded an adequate
product-warning. For example, in Dimond v. Caterpillar Tractor Co. (1976) 65
Cal.App.3d 173, the plaintiff, like Fua in this case, had amnesia as a result of the
accident and thus could not testify that he would have heeded an adequate warning.

Te.

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(id., at p. 177.) The court held it could be inferred he would have done so. (/d., at
p. 180.) So too, in Elmore v. American Motors Corp. (1969) 70 Cal.2d 578, the accident
caused the plaintiff to suffer amnesia; thus, causation could not be proved by her own
testimony. The court noted that the proof of a product defect can be proved by
circumstantial evidence and that “No reason appears why the same rule should not
apply where the plaintiff is seeking to prove that the defect caused his injuries.” (Id., at
pp. 583-584, italics added, citing Vandermark v. Ford Motor Co. (1964) 61 Cal.2d 256,
260; accord, Tennant v. Peoria & Pekin Union Railway Co. (1944) 321 U.S. 29, 32;
64 S.Ct. 409, 411; 88 L.Ed. 520, 524 [inferring that the lack of a back-up warning on a
locomotive caused railroad worker’s death and presuming that he was using due care
for his safety]. And just as this rule applies to causation as well as to negligence, it
should also apply to reliance.

The California Supreme Court has explained the sound public-policy for such an
approach. In Haft v. Lone Palm Motel (1970) 3 Cal.3d 756, a father and his young son
had drowned in a motel swimming-pool. It lacked all of the major safety-measures
required by California law, including a warning sign that no lifeguard was on duty. (/d.,
at pp. 747-748.) No one witnessed the drowning. The court acknowledged the “paucity
of evidence on causation.” (/d., at p. 771.) But the court explained that the absence of
evidence—i.e., the two decedents could not testify—was the result of the defendant's
negligence. If there had been a lifeguard, there would have been a witness. (/d., at
pp. 773-774.) To preclude the defendant from taking advantage of the situation that it
had created, the court shifted the burden to the defendant to prove that its negligence
did not cause the drownings. (/d., at pp. 773-774.) The Supreme Court explained the
public policy thusly:

[Whhen there is a substantial probability that a defendant's
negligence was a cause of an accident, and when the
defendant's negligence makes it impossible, as a_ practical
matter, for plaintiff to prove ‘proximate causation’ conclusively, it
is more appropriate to hold the defendant liable than to deny an
innocent plaintiff recovery, unless the defendant can prove that
his negligence was not a cause of the injury.

(Id., at p. 774, fn. 19, italics in the opinion.)
The same logic fits the present case. It is appropriates to hold that Yellow Cab
driver Sanchez was Yellow Cab’s ostensible agent unless Yellow Cab can prove that

Sanchez was nof its ostensible agent.

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Likewise, in Whitlow, supra, 237 Cal.App.4th 631, the plaintiff died as a result of
an emergency-room physician’s negligence, so she, of course, could not testify that she
believed he was the hospital's agent. But that was of no consequence. Rather, the
appellate court held the jury could rely on the evidence that was available. “The jurors
will determine whether the size, location, and content of the signs posted in the
emergency room would give a reasonable person notice of the hospital’s disclaimer [of
any agency].” (/d., at p. 640.) And the court held that the plaintiff's son could testify to
what he knew. (/d., at p. 641.) Thus, in the present case, this Court can consider that
the cab was plainly and fully marked as being a Yellow Cab. And the Court can rely on
Fua’s fiancé Jeffrey Cheng’s trial testimony.

California is far from alone in its common-sense approach. The reasonable
course, followed by “the majority of jurisdictions,” is to presume that the deceased
victim would have heeded an adequate warning. (House v. Armour of America, Inc.
(Utah 1996) 929 P.2d 340, 347 [applying presumption that deceased police officer
would have heeded an adequate warning on his body armor]; DaimlerChrysler Corp. v.
Hillhouse (Tex.Civ.App. 2004) 161 S.W.3d 541, 550 [a presumption that the injured
person would have heeded a warning makes special sense when the person has died];
Schutte v. Celotex Corp. (Mich.Ct.App. 1992) 492 N.W.2d 773, 777 [Noting that it is
“virtually impossible to prove what the decedent would have done if he had been
warned.”].) As one court stated the obvious, “if the user of a product dies from its use,
testimony whether he did or did not read the label may be impossible.” (Technical
Chemical Co. v. Jacobs (Tex. 1972) 480 S.W.2d 602, 606 [adopting a presumption that
the plaintiff would have heeded a warning]; see also, Annot., Presumption or Inference,
in Products Liability Action Based on Failure to Warn, That User Would Have Heeded
an Adequate Warning Had One Been Given (1996) 38 A.L.R.5th 683.) Indeed, the
injustice of requiring a plaintiff such as Fua to testify to what she cannot remember “is
particularly offensive in that the plaintiff was killed [or injured] in the accident and is in
no position to testify.” (Aaron Twerski & Neil Cohen, Resolving the Dilemma of
Nonjusticiable Causation in Failure-to-Warn Litigation (2010) 84 So. Cal. L.Rev. 125,
141.)

The same public-policy and logic apply to the present case even though the

question is agency rather than negligence or causation. It is undisputed that Fua was

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injured solely as a result of the crash, and Yellow Cab no longer disputes that driver
Sanchez was negligent. Because defendant Yellow Cab allowed Sanchez to drive a
taxi that was plainly marked as being a Yellow Cab taxi, defendant should be required
to prove that Sanchez was not its agent. Defendant Yellow Cab failed to do so. Indeed,
Yellow Cab altogether ignores the burden of proof. Alternatively, and at a minimum, the
evidence that was admitted at trial should be deemed sufficient to permit the inference
that a reasonable person in Fua’s situation would have believed that Sanchez was
Yellow Cab’s employee or agent. Likewise, the evidence should be deemed sufficient to
permit the evidence that Fua, in fact, believed the cab was being driven by someone
with permission and authority from a licensed taxi-company, more specifically, by an
employee or authorized agent of Yellow Cab.

Indeed, the Court specifically noted that plaintiff had adduced ample evidence on
this issue during the hearing of June 9, 2015 in which the Court denied plaintiff's
request to recall Jeff Cheng, this Court stated:

THE COURT: Very well, Court's considered the arguments of counsel and the
pleadings. The motion to have Mr. Cheng testify as a witness is denied. Court's
considered also the relevance of the testimony under, logically and legally, and
under Evidence Code Section 352, the Court will state that it's done its weighing
balance and while there is a reference that it may only take five or ten minutes,
the Court really does not believe that it will add to the testimony of Ms. Fua.
Court believes that there has been ample testimony as to what Ms. Fua's
practices are, her impressions as to what Mr. Cheng does when a cab is
acquired of the two of them. | think frankly that the evidence that plaintiff
needs in this case has been established already by the testimony of Ms.
Fua, and for that matter in some ways Ms. Fua testimony with regard to Mr.
Cheng and his general conduct as a gentleman has been well established in this
case. | would say that Mr. Cheng has shown his earnestness with regard to his
commitment to Ms. Fua throughout the trial, and | do not think that Mr. Cheng
needs to testify any further with respect to his issue. | think the issue is
addressed by the evidence in this case. (Emphasis added. See Exhibit 2.
attached to the declaration of Todd P. Emanuel.)

F. FUA’S RELIANCE ON SANCHEZ'S OSTENSIBLE AGENCY CAN BE
SHOWN BY EVIDENCE OF FUA’S CUSTOM OR HABIT.

Fua's belief that she was entering a taxi controlled or operated (rather than

merely driven), not by Sanchez, but by a licensed, regulated, and reputable taxi
company such as Yellow Cab can be shown by evidence that Fua’s custom and habit
was to take only such taxis rather than private cars or even taxis whose reputation and

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control were doubtful. Evidence Code, section 1105 states, “Any otherwise admissible
evidence of habit or custom is admissible to prove conduct on a specified occasion in
conformity with the habit or custom.” (See generally, 2 Jefferson, Cal. Evidence
Benchbook (Cont.Ed.Bar 2014) § 35.64, p. 35-50.)

Of course, a plaintiff or other person can testify to the plaintiffs own custom or
habit. (In re Charles G. (1979) 95 Cal.App.3d 62, 64-66 [automobile-burglary victim
allowed to testify to his custom of locking his car doors].) But such testimony is not
required. The custom or habit can be shown by other evidence, including the testimony
of another person. For example, in Dincau v. Tomayose (1982) 131 Cal.App.3d 780,
794-795, a physician’s nurse was allowed to testify regarding the physician’s habit or
custom of dealing with patients in the plaintiff's medical situation.

So too here. Sanchez’s negligence in driving the Yellow Cab taxi resulted in the
injuries that caused Fua’s amnesia. Defendants thus should not be allowed to benefit
from Fua’s amnesia. Even if the law otherwise precluded Jeffrey Cheng’s testimony
regarding Fua’s custom or habit—which it does not—Fua’s amnesia is a proper ground
for permitting Cheng’s testimony. Indeed, under Haft, supra, 3 Cal.3d 756, and Whitlow,
supra, 237 Cal.App.4th 631, and the other authorities discussed above, the proper
result is even broader, i.e., driver Sanchez’s ostensible agency for Yellow Cab should
be presumed.

G. THE EVIDENCE SHOWED THAT FUA HAD A CUSTOM OR HABIT OF

RIDING ONLY IN REPUTABLE TAXIS.

Yellow Cab ignores a crucial fact. Fua and her fiancé Jeffrey Cheng embarked

on their fateful taxi-ride at the official taxi-stand at San Francisco International Airport,
which was staffed by an attendant. (Cheng May 19, 2015, testimony (Cheng
Testimony) at pp. 15:2 to 17:9.) Of all places served by Bay Area taxis, this is almost
certainly the place that a passenger can be most assured of obtaining a licensed,
reputable cab. When obtaining ground transportation from SFO, Fua and Cheng did not
go to a place where they were likely to be solicited by so-called gypsy cabs or other
unlicensed transportation. Indeed, Cheng always used the official tax-stand at airports.
(Cheng Testimony at p. 16:15-18.) He had never seen an unlicensed or “unmarked car,
civilian car or something like that” in an airport taxi-line. (/d., at p. 16:19-26.) That was

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not all. Cheng testified that, before he and Fua entered into the Yellow Cab driven by
Sanchez,

A | [Chang] definitely looked at the cab and made sure that it
was a legitimate taxi cab and not an unmarked car. [J]

[1] It looked like a typical taxi, four-door sedan, had a
number on it, had—you know—the markings that you
would expect of a taxi, phone numbers and words on the
side, name and—name and number of the taxi company.

Q: Do you remember the name of the company?
A Yellow Cab.

(Cheng Testimony at pp. 17:7-9, 17:24-28 & 18:1-3.)

The Yellow Cab makings on which Cheng relied are significant, as shown by the
San Francisco Metropolitan Transportation Authority's (SFMTA’s) regulations. Indeed,
the definition of a “taxi” includes its color scheme. “ ‘Taxi’ shall mean a vehicle operated
pursuant to a Taxi or Ramp Taxi Medallion that is legally authorized to pick up
passengers within the City with or without prearrangement, of a distinctive color or
colors. . . .” (San Francisco Transportation Code (S.F. Code), Div. Il, Art. 1100, § 1102,
italics added.) Likewise, the Code states that “Each Color Scheme shall ensure that all
Medallion Holders affiliated with that Color Scheme utilize the same Dispatch Service
utilized by the Color Scheme. A Color Scheme must obtain the prior written approval of
the SFMTA before changing Dispatch Services.” (S.F. Code, §1106, subd. (c).) The
legal importance of taxis’ color schemes, such as that of Yellow Cab further shows why

prospective passengers can and do rely on the color scheme of a company such as
Yellow Cab Inc.3

Fua’s own testimony further supports the inference that she would not have
taken the Yellow Cab driven by Sanchez if it had not been a licensed and regulated
cab. Fua knew that she and Cheng would be taking a taxi from SFO, which, as
explained above, provides taxi stands for licensed taxis. (Fua May 26, 2015, testimony
(Fua Testimony) at p. 75:5-10.) Fua relied on Cheng to obtain taxis for them. (/d., at
p. at pp. 75:16 to 76:24.) She never hailed a cab for herself and Cheng. (/d., at p.
76:13.) He hailed cabs for them as part of their relationship. (/d., at p. 76:17-24.)

8 This is so important that the SFMTA posts a photo of Yellow Cab’s color

scheme on the authority's website. ( as of Dec. 9, 2015.)

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Between them, “There was an understanding | think that the cab we would get into
would be a cab we could trust.” (/d., at p. 77:4-6.) Fua further testified that:

A: [Wle never sort of took rides—I guess when | think of a
driver, you can’t really trust a like person—just like a guy
driving a car, hey you guys need a ride somewhere, That’s
probably something we would never do because it was just
I don’t know. .. [fl]

(Fua Testimony at p. 77:8-13.)

Fua had hailed cabs by herself including in Los Angeles, Boston, and New York.
(Fua Testimony at p. 77:14-21.) She never used rogue or gypsy cabs or even owner-
operated cabs:

Q. Did you ever take a ride from a stranger who you believed
to be the sole owner and operator of a car as opposed to
being hooked up with a company?

No.

Did you ever get into a taxi cab that looked like a cab you
have never seen before?

No.
Why not?

| think because | always think of it like stranger danger. .
[Blut | feel like the risk, you minimize it when you get into
— when you get into a cab that you recognize .

(Fua Testimony at p. 78:2:-21.)
Fua relied on the markings and equipment of the cabs she took, for example, the

POD OF

presence of a meter and credit-card machine. (Fua Testimony at p. 79:5-10.) And she
relied on taxis’ markings and color schemes.

A. | guess | looked for like something that was marked taxi,
something that looked official, like something that was real
or legitimate | guess. You know, like | didn’t want to get into
a plain, unmarked van.

(Fua Testimony at p. 79:14-18.)

Likewise, when Fua took a cab with Cheng, they had an “implicit understanding
that it would be sort of something we recognized looks familiar, brand or known to be
reputable.” (Fua Testimony at p. 80:25-27 & 81:7-10.) She relied on Cheng for this
because he is “super safe and conservative.” (/d., at p. 81:17.) Fua had never seen him
get into a cab that caused her any concern. (/d., at p. 80:24-27.) And Fua believed it
was important to use only company-operated cabs because they are likely to be safer
in light of them being regulated by the government. (/d., at p. 82:5-12.) So when she

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needed a cab, she even did research. “So when | had to call for a cab, | would look up
Internet reviews, check Yelp, you know taxi cab companies” because she wanted a cab
she could trust. (/d., at p. 82:17-22.) Fua always wanted to see that a taxi was “labeled
and official looking.” (/d., at p. 137:17-18.) She did not know it was even possible that a
driver could operate a taxi without working for a company. (/d., at p. 136:21-25.)

In short, there was ample evidence to permit the jury to conclude that, when Fua
entered the Yellow Cab on April 4, 2011, she believed it was operated by a licensed
cab-company, in particular, Yellow Cab. At a minimum, the evidence supported an
inference that Fua reasonably relied on the Yellow Cab being operated by Yellow Cab.
Indeed, that is the only conclusion a person such as Fua could have reached. The cab
had the distinctive Yellow Cab color-scheme approved by the SFMTA. There was no
warning on the cab to disclaim to prospective passengers that it was owned and
operated only by driver Sanchez. And Yellow Cab introduced no evidence whatsoever
that Fua had even a bare suspicion that the Yellow Cab driven by Sanchez was not
being operated under Yellow Cab’s permission and authority.

H. YELLOW CAB INC. IGNORES THE STANDARD REQUIRED FOR

GRANTING JUDGMENT NOTWITHSTANDING THE VERDICT.

Of course, the evidence cannot be considered in a vacuum. Rather, it must be
viewed in light of the highly restrictive standard that governs a motion for judgment
notwithstanding the verdict (JNOV). “ ‘The trial court's discretion in granting a motion for
judgment notwithstanding the verdict is severely limited.” (Hansen v. Sunnyside
Products, Inc. (1997) 55 Cal.App.4th 1497, 1510 [reversing a JNOV], quoting Teitel v.
First Los Angeles Bank (1991) 231 Cal.App.3d 1593, 1603 [reversing a JNOV].) “ ‘The
trial judge cannot reweigh the evidence [citation], or judge the credibility of witnesses.
[Citation.] If the evidence is conflicting or if several reasonable inferences may be
drawn, the motion for judgment notwithstanding the verdict should be denied.
[Citations.] . . . If there is any substantial evidence, or reasonable inferences to be
drawn therefrom, in support of the verdict, the motion should be denied.’ ” (Hansen,
supra, 55 Cal.App.4th at p. 1510, quoting Clemmer v. Hartford Insurance Co. (1978)
22 Cal.3d 865, 877-878 [affirming the denial of a JNOV].)

Yellow Cab. cannot meet this exacting standard. The evidence and the

reasonable inferences from it were that Fua and Cheng would not have embarked in

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the Yellow Cab driven by Sanchez if they had known he had no affiliation with Yellow
Cab Inc.

lil. CONCLUSION

Yellow Cab’s motion for judgment notwithstanding the verdict should be denied.
First, Fua was not required to testify to her subjective belief regarding whether driver
Sanchez was Yellow Cab ostensible agent. Rather, Sanchez is deemed to have been
Yellow Cab’s agent. (Mejia v. Community Hospital of San Bernardino, supra,
99 Cal.App.4th 1448, 1454; Whitlow v. Rideout Memorial Hospital, supra, 237
Cal.App.4th 631, 637 & 639.)

Second, even if Fua’s subjective belief were relevant, the evidence was sufficient
in its own right to support the verdict, more specifically, at a minimum, the inference that
Fua relied on the Yellow Cab being operated by Yellow Cab. No more was required.

Third, when a plaintiffs mental inability to testify specifically to negligence,
causation, or reliance is caused by the wrongdoing that gives rise to her suit, the
burden of proof is relaxed; indeed, it is shifted to the defendant. (Haft, supra, 3 Cal.3d
756, 773-774.)

Fourth, taxi companies have argued for decades that they are not responsible for
injuries caused to their passengers. This argument has been so soundly rejected that it
has been made an example in the Restatement Second of Agency. If Yellow Cab wants
California to depart from the mainstream, Yellow Cab should make its argument to the
Court of Appeal rather than to this Court.

The Court should deny Yellow Cab’s motion for judgment notwithstanding the
verdict.

Dated: December 21, 2015 RESPECTFULLY SUBMITTED,
EMANUEL LAW GROUP

Anal

TODD P. EMANUEL, ESQ.
Attorneys for Plaintiff IDA FUA

5.