Judge Jill Feeney, Case 22STCV20339 2023-02-21 Tentative Ruling

The FAC alleges one cause of action against Bird, negligence. Bird demurs to the FAC on the grounds that (1) Plaintiff does not and could not allege that Bird owned, controlled, or maintained the premises where Plaintiff alleges she tripped and fell, (2) Plaintiff failed to plead any facts demonstrating a special relationship between Bird and Plaintiff necessary to establish a duty of care, and (3) Plaintiff pleaded only Bird’s alleged inaction, which is insufficient to establish a duty of care.

Plaintiff argues that Bird owes a duty of care to avoid causing injury. Even if the scooter was left on the sidewalk by an unknown third party, Bird is a common carrier and has a special relationship with its passengers. Thus, Bird has an affirmative duty to protect the victims of its passengers’ harm. In the absence of a special relationship, Plaintiff argues that the Rowland factors support imposing a duty on Bird.

Bird reiterates that Plaintiff’s FAC fails to allege facts sufficient to support a cause of action for premises liability. Bird also argues it did not owe a duty to protect Plaintiff from third-party conduct. With respect to the Rowland factors, Bird argues that Plaintiff’s injury was not foreseeable, that Bird’s business model was specifically permitted by the legislature, that the scooters are allowed to be parked on sidewalks, and that imposing a duty on Bird would be detrimental to its operations.

Operators seeking to participate in the Dockless Mobility Annual Permit are required to submit a plan that details strategies for promoting safe and legal parking practices that comply with the Los Angeles Dockless On-Demand Mobility Rules and Guidelines 2021. Operators must describe specific features incorporated into the system functionality that will communicate parking rules to users.

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.) The ultimate facts alleged in the complaint must be deemed true, as well as all facts that may be implied or inferred from those expressly alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403; see also Shields v. County of San Diego (1984) 155 Cal.App.3d 103, 133 [stating, “[o]n demurrer, pleadings are read liberally, and allegations contained therein are assumed to be true”].)

Bird demurs to Plaintiff’s FAC on the grounds that it fails to allege facts that would support causes of action for premises liability or negligence. Bird’s counsel provided a declaration stating that the parties met and conferred via telephone and email, meeting the meet and confer requirements of Code Civ. Proc., § 430.41(a).

Plaintiff’s FAC states that she was walking on Kelton Avenue in Los Angeles, California, when she tripped on wires and piping covering the sidewalk. The wires came from a van parked at 1868 Kelton Ave. (FAC p. 5.) As she fell, she landed on a scooter that was left on the sidewalk, causing her injuries. (FAC p.5.) The FAC further states Bird carelessly and recklessly maintained the sidewalk in front of 1868 Kelton Avenue by creating a dangerous condition that caused Plaintiff’s injuries. (FAC p.4.)

Bird demurs to Plaintiff’s FAC on the grounds that it fails to allege facts that demonstrate a special relationship between Bird and Jacobson necessary to establish a duty of care. Additionally, Bird argues that its alleged nonfeasance is insufficient to establish a duty of care.

“The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.) “Breach is the failure to meet the standard of care.” (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 643.) “The element of causation requires there to be a connection between the defendant’s breach and the plaintiff’s injury.” (Id. p. 645.)

“Misfeasance is the improper performance of an act that is otherwise proper and nonfeasance is the nonperformance of an act that should have been performed.¿Misfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., defendant has created a risk. [N]onfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention.¿[L]iability for nonfeasance is largely limited to those circumstances in which some special relationship can be established.¿If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care.”¿(Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1079, internal citations, quotations, and emphasis omitted.)¿

Bird argues that it did not owe a duty of care because Bird did not own or control the sidewalk where Plaintiff fell, did not owe a duty to protect Plaintiff from the actions of the unknown third party who parked the scooter, and that the Court should limit imposition of a duty for public policy reasons. Bird cites Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213, which provides that there is no duty to protect others from the conduct of third parties.

Plaintiff in opposition argues that Bird is a common carrier that has a special relationship with its passengers and that Bird owes a duty to protect victims of their passengers’ harm. Plaintiff cites Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 215 and Acosta v. S. Cal. Rapid Transit Dist. (1970) 2 Cal.3d 19.

Plaintiff argues in the alternative that the Rowland factors weigh in favor of a finding that Bird owed her a duty. Plaintiff argues that it is foreseeable that scattering tens of thousands of scooters throughout Los Angeles would be a safety concern, that the community has an interest in promoting safety and preventing dangerous conduct, and that Bird would not be burdened by an imposition of duty because it is already required to follow the City of Los Angeles’s requirements for maintaining an insurance policy.

In Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, the Supreme Court summarized the so-called Rowland factors: “In the Rowland decision, this court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.’” (Id. at p. 771 [citing Rowland v. Christian, 69 Cal.2d 108, 113).) Although foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, one or more of the Rowland factors may be determinative of the duty analysis in a given case. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213; Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237, fn. 15.)

The rule governing duty is set forth in Civil Code Section 1714 (section 1714). (Cabral v. Ralphs Grocery Co. (2011) 51 Cal4th 764, 771.) This statute establishes the default rule that each person has a duty “to exercise, in his or her activities, reasonable care for the safety of others.” (Cabral, 51 Cal4th 764 at 768.)

With respect to a defendant who has not taken any action that contributed to the risk of harm to a plaintiff, but only failed to take an affirmative step to assist or protect another from that risk, the general rule is that such a defendant has no duty of care with respect to the plaintiff. (Id.) This is known as nonfeasance as opposed to misfeasance.

The nonfeasance rule does have some exceptions. For instance, an affirmative duty to protect may be imposed for the actions of a third party when a special relationship exists between the defendant and either the victim or the person who created the harm. (Id. at 215.) Among these special relationships are those that exist with respect to a common carrier. (Id. at 216.)

The FAC is devoid of any allegations that would support Plaintiff’s contention that Defendant Bird, as a common carrier, has an affirmative duty with respect to nonfeasance. The complaint does not allege (1) the type of business Bird conducts; (2) Plaintiff fell on top of a scooter left on the sidewalk; (3) Bird owned the scooter; (4) the scooter was left on the sidewalk by one of Bird’s customers; (5) the scooter was improperly parked/left on the sidewalk in an unsafe manner; and (6) Bird is a common carrier.

The FAC also does not state a cause of action for misfeasance. Although Plaintiff is making a claim of negligence, not premises, liability, the language used in the complaint about maintaining the sidewalk is premised on the existence of a duty under a theory of premises liability.

In addition to not alleging the basic facts set forth in items numbers 1 through 5 above, Plaintiff also does not allege that Bird negligently operated its business in some fashion, such as by not creating a safe system for the parking of scooters so as to protect pedestrians from harm. Plaintiff also does not allege that Bird failed to comply with its safe parking plan as required by its permit. Plaintiff also does not include allegations in the complaint that address the Rowland factors.