Judge: Daniel M. Crowley, Case: 19STCV47007, Date: 2023-02-28 Tentative Ruling
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Case Number: 19STCV47007 Hearing Date: February 28, 2023 Dept: 28
Defendant Bird Rides, Inc.’s Motion
for Summary Judgment
Having considered the moving,
opposing and reply papers, the Court rules as follows.
BACKGROUND
On
December 31, 2019, Plaintiff Rebecca Q. Krief (“Plaintiff”) filed this action
against Defendants Bird Rides, Inc. (“Bird”) and City of Santa Monica (“City”)
for negligence, negligence per se, gross negligence and public nuisance.
On
November 16, 2020, Plaintiff filed the FAC, changing the causes of action to
negligence and dangerous condition of public property.
On
January 4, 2021, Bird filed an answer. On July 2, 2021, the Court dismissed the
City, with prejudice, pursuant to Plaintiff’s request.
On
August 30, 2021, Bird filed a Motion for Summary Judgment to be heard on November
12, 2021. The Court continued the hearing on the motion to February 28, 2023. On
February 14, 2023, Plaintiff filed an opposition. On February 23, 2023, Bird
filed a reply.
Trial
is currently set for May 17, 2023.
PARTY’S REQUESTS
Bird requests the Court grant
summary judgment as there is no triable issue as to material fact.
Plaintiff requests the Court deny
summary judgment.
OBJECTIONS
Plaintiff’s
objection is OVERRULED
Bird’s
objections:
Sustained:
1,
Overruled: 2, 3, 4
LEGAL STANDARD
The
function of a motion for summary judgment or adjudication is to allow a determination
as to whether an opposing party cannot show evidentiary support for a pleading
or claim and to enable an order of summary dismissal without the need for
trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)
CCP § 437c(c) “requires the trial judge to grant summary judgment if all the
evidence submitted, and ‘all inferences reasonably deducible from the evidence’
and uncontradicted by other inferences or evidence, show that there is no
triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” (Adler
v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion
for summary judgment is to delimit the scope of the issues; the function of the
affidavits or declarations is to disclose whether there is any triable issue of
fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993)
12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991)
231 Cal. App. 3d 367, 381-382.)
As
to each claim as framed by the complaint, the defendant moving for summary
judgment must satisfy the initial burden of proof by presenting facts to negate
an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v.
D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520) Courts “liberally
construe the evidence in support of the party opposing summary judgment and
resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006)
39 Cal.4th 384, 389.)
Once
the defendant has met that burden, the burden shifts to the plaintiff to show
that a triable issue of one or more material facts exists as to that cause of
action or a defense thereto. To establish a triable issue of material fact, the
party opposing the motion must produce substantial responsive evidence. (Sangster
v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
The elements of a cause of action
for negligence are well established. They are: (1) a legal duty to use due
care; (2) a breach of such legal duty; [and] (3) the breach as the proximate or
legal cause of the resulting injury. Ladd v. County of San Mateo, 12
Cal.4th 913, 917 (1996).
DISCUSSION
Plaintiff alleges that at the time of the
incident, she tripped over a Bird scooter that was left of the sidewalk. (UMF
5.) It was allegedly concealed behind the light post on the corner of 3rd
Street and Wilshire Blvd., not visible to passersby. (UMF 5.) Plaintiff alleges
that Bird owed a duty of care to ensure that its scooters are parked safely,
visibly and legally so as not to pose a danger to unsuspecting pedestrians.
(UMF 10.)
Bird provides an on-demand personal electric
scooter sharing network. (UMF 16.) In order to rent a Bird scooter, a user must
first download the Bird App and create an account. (UMF 21.) In order to
register for an account, a user must review and accept the rental agreement;
the rental agreement, or any updated agreements, must be agreed to for the scooter
to operate. (UMF 23-28,) The rental agreement states that the scooter must be
parked in a space that is visible and in an upright position using the
kickstand. (UMF 32.) Bird also provides instructions on how to safely park
scooters in designated spots to keep sidewalks clear. (UMF 27.) Users are also
required to take a photograph of the scooter at the conclusion of each ride
through the Bird App, which prompts them with a reminder to park the scooter
safely. (UMF 42-44.) Bird did not provide the subject photo, nor indicate that
the user submitted a photo of the scooter prior to the incident.
Bird argues that Plaintiff cannot show any
evidence that Bird placed or parked the scooter in Plaintiff’s path at the time
of the incident, stating it is undisputed that some other person, not Bird,
caused Plaintiff’s injury. Generally speaking, someone has no duty to protect
another from the conduct of third parties, unless there exists a special relationship
or a party engages in misfeasance. Bird states it did not control the
alleged third party. However, Bird has not provided sufficient evidence in
support of this claim. Bird stated that it required a user to provide
photographic evidence of a parked scooter prior to ending the ride; Bird did
not submit evidence indicating that the Bird user properly parked the scooter
prior to the incident. If someone utilizing a Bird rental scooter, pursuant to
a Bird rental agreement, failed to park the scooter in a safe manner, Bird may
be liable for resulting injuries. If Bird was on notice as to the poorly parked
scooter, Bird may be liable for failing to take proper steps to fix the safety
hazard. Bird operates a large-scale business that involves leaving sizeable
scooters around public walkways and streets. Bird has an obligation to take the
proper steps to ensure that business does not interfere with pedestrian’s
rights to safe and free access of public property.
In evaluating the subject photo, which was
presented in Plaintiff’s opposition, (Einhorn Decl. Ex. 3), the Court finds the
picture is unclear. Due to the blurriness and poor framing, the Court is
unaware if the scooter was parked in the street or the sidewalk—either way, it
is not clear, as a matter of law, that the subject scooter was parked according
to the City’s laws. As mentioned above, Bird may be liable for failing to
ensure that its scooters were parked in accordance with proper laws.
Bird also argues that because Bird was
permitted and legally allowed to conduct its business in Santa Monica and
provided ample instruction on proper parking procedures, Bird did not create
any risk under a theory of misfeasance. It specifically states that mere foreseeability
of possible danger does not give rise to duty. (Parsons v. Crown Disposal
Co. (1997) 15 Cal.4th 456, 476.) However, the cited cases do not align with the
facts of this case. For example, in Parsons, a plaintiff was injured
after being thrown from a horse which was frightened by loud noises from a
nearby garbage truck that was operating in its normal manner; the Court found
it was not sufficient to merely note that the defendant garbage truck driver
knew there was a horse trail nearby in establishing foreseeability. (Id.) The
Court found that the defendant was obligated to not drive the truck carelessly
or imprudently, cause unnecessary noises, or conduct machinery in an
unnecessary or malicious manner. (Id. At 477.) Because the defendant was simply
acting within the normal scope of driving a garbage truck, there was no
indication of liability for spooking the horse. (Id.) The facts of this case
differ. Here, Plaintiff tripped over an improperly parked Bird scooter; the
cause of the injury itself was not acting within the normal scope of
use, as it was obscured and on its side.
Based on the above reasons, the Court finds
that Bird does not meet its burden for summary judgment. The Court denies the
motion.
CONCLUSION
Defendant
Bird Rides, Inc.’s Motion for Summary Judgment is DENIED.
Moving
party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this
ruling with the Court within five days.
The parties are directed to the header of this
tentative ruling for further instructions.