Judge: Lee S. Arian, Case: 21STCV04367, Date: 2024-01-17 Tentative Ruling

Case Number: 21STCV04367    Hearing Date: March 25, 2024    Dept: 27

Hon. Lee S. Arian¿ 

Department 27¿ 

Tentative Ruling¿ 

Hearing Date:           3/25/2024 at 1:30 p.m.¿ 

Case No./Name:       21STCV04367 Edwin Sargenti v. City of Long Beach, et al.

Motion:                     MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION

Moving Party:           Defendant City of Long Beach

Responding Party:    Plaintiff Edwin Sargenti

Notice:                      Sufficient¿ 

Ruling:                     THE COURT WILL HEAR FROM THE PARTIES

I.          PROCEDURAL BACKGROUND

            On February 3, 2021, Plaintiff, Edwin Sargenti, initiated this action against Defendants, City of Long Beach (“City”) and ASM Global, ^[1] for injuries Plaintiff sustained due to an allegedly dangerous condition on the City’s property.  Plaintiff filed the operative First Amended Complaint (“FAC”) on March 22, 2021.

            On July 19, 2023, the City filed this motion for summary judgment, or in the alternative, summary adjudication, on the FAC.  Plaintiff opposed and the City replied. The hearing was originally scheduled for October 20, 2023 with Judge Kerry Bensinger, but was continued to March 25, 2024.

II.        BRIEF SUMMARY OF THE FACTUAL BACKGROUND

            On January 27, 2020, Plaintiff was riding a Lime scooter on the sidewalk when he encountered a removable white barrier.  Plaintiff attempted to transition from the sidewalk to the street by using the driveway at 202 E. Shoreline Drive.  Plaintiff alleges he hit an asphalt patch over a portion of the driveway which caused him to fall from the scooter.

III.       LEGAL STANDARD FOR SUMMARY JUDGMENT

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied.  (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)  Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”  (Aguilar, supra, 25 Cal.4th at p. 854.)  It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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 the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

            The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”  (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.)  “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.  While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  [Citation.]  Only when the inferences are indisputable may the court decide the issues as a matter of law.  If the evidence is in conflict, the factual issues must be resolved by trial.”  (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  [Citation.]  Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.  [Citation.]”  (Id. at p. 840; see also Weiss v. People ex rel.  Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

IV.       JUDICIAL NOTICE

            The City requests judicial notice of (1) Plaintiff’s FAC, (2) the City’s Answer to the FAC, (3) Plaintiff’s Request for Dismissal of ASM Global, (4) Vehicle Code section 21229, (5) Vehicle Code section 21235, subd. (g), and (6) Long Beach Municipal Code section 10.38.020.

            The unopposed requests are granted.  (Evid. Code § 452, subds. (b), (d).)

V.        EVIDENTIARY OBJECTIONS

            Plaintiff submits six (6) objections to the declarations of Tania Ochoa and Anthony Maldonado.  The first objection is aimed at a portion of the Ochoa Declaration and the remaining five objections are aimed at portions of the Maldonado Declaration.  The objections are overruled.

            The City submits one (1) objection to Plaintiff’s evidence.  The City objects to Exhibit E to the Declaration of Plaintiff’s counsel, Daniel K. Kramer.  Exhibit E is a screenshot of a Google Maps image purportedly depicting the subject driveway in March of 2015.  The objection is based upon lack of foundation, lack of authentication, assumption of facts not in evidence, speculation, and the best evidence rule. The objection is overruled as trial counsel can cure the foundational defects at trial. (See Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 948-949 (noting that inadmissible evidence may be considered in ruling on a summary judgment motion if the defects can be cured at trial.) 

 VI.      DISCUSSION

A. The Incident

On January 27, 2020, Plaintiff was operating a motorized Lime scooter in the City of Long Beach at or near 202 E. Shoreline Drive.  (City’s Undisputed Material Facts (“UMF”) 4.)  While riding on the sidewalk on the west side of Shoreline Drive, Plaintiff observed an obstacle, later identified as a removable white barrier, and attempted to transition from the sidewalk to the street wherein a bicycle lane was located.  (UMF 5.)  As Plaintiff made the move from the sidewalk to the bicycle lane, Plaintiff hit an asphalt patch located over a portion of the driveway section of the sidewalk, causing him to fall from the scooter and injure his left ankle.  (UMF 6.)  The incident occurred between 7:00 and 8:00 p.m.  (Plaintiff’s Additional Material Facts (“AMF”) 1.)

Notice of the Condition

The City does not have any record, log, or document concerning the subject asphalt patch and location of the incident that is the subject of this lawsuit.  (UMF 21; Declaration of Willie Owens, ¶ 5.)  The City does not perform asphalt patch work without a work order.  (UMF 27; Owens Decl., ¶ 10.)  The City Public Works Department does not contract for services to repair these type of asphalt patches on City sidewalks or streets.  (UMF 28; Owens Decl., ¶ 11.)  Because the subject asphalt match is on a driveway that provides ingress and egress to the parking lot of the Long Beach Convention Event Center which is managed and operated by ASM Global Convention Center Management, LLC, the City would have no reason to install the subject asphalt.  (UMF 30; Owens Decl., ¶ 13.)

Lime User Agreement

Lime is a company that facilitates dockless bicycle and electric scooter (“e-scooter”) rentals around metropolitan areas via the Lime app, a web-based application.  (UMF 9.)  Before Plaintiff was able to operate the Lime e-scooter, Plaintiff entered into a User Agreement and Terms of Service.  (UMF 8; Declaration of Anthony Maldonado, ¶¶ 11-13, Exs. C and D.)  On the date of the incident, Lime was lawfully facilitating e-scooter rentals via the Lime app in the City.  (UMF 10.)  Plaintiff registered for the Lime app on March 24, 2019. (UMF 12; Maldonado Decl., ¶¶ 11-13, Exs. C and D.)  At that time, Plaintiff viewed the user Agreement clickwrap screen on the Lime App and clicked the “I Agree” click button asserting that he reviewed, understood, and agreed to the User Agreement and was able to reserve and operate Lime e-scooters.  (UMF 16; Maldonado Decl., ¶ 15.)  Plaintiff could not have registered, unlocked, or operated the Lime e-scooter he was riding at the time of the alleged incident without first having previously clicked the “I agree” click button agreeing to the User Agreement.  (UMF 17.)  The User Agreement contains an exculpatory provision whereby the user agrees to hold harmless “Released Persons” such as public entities for injuries arising from the misuse of a Lime e-scooter.  (Maldonado Decl., ¶ 11, Ex. C.) 

B. Applicable Law

Government Code section 815 provides that “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person” except as provided by statute. (Gov. Code, § 815, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932.) “[D]irect tort liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care, and not on the general tort provisions of Civil Code section 1714. Otherwise, the general rule of immunity for public entities would be largely eroded by the routine application of general tort principles.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)  Here, the applicable statutory provisions are Government Code sections 835 and 835.2.

            Section 835 provides: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and that either: [¶] (a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or [¶] (b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (§ 835.)[2]

            Section 835.2 follows on, providing in pertinent part: “(a) A public entity had actual notice of a dangerous condition within the meaning of subdivision (b) of Section 835 if it had actual knowledge of the existence of the condition and knew or should have known of its dangerous character. [¶] (b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character....” (§ 835.2.)

C. Contentions[3]

The City seeks summary judgment or alternatively, summary adjudication, on three issues: (1) Whether the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred; (2) Whether the City had actual or constructive notice of the condition; and (3) Whether Plaintiff released and waived all claims against the City as a result of his breach of the Lime User Agreement.  The Court addresses each issue in turn.[4]

            1.  Foreseeable Risk

To establish a claim of dangerous condition on public property, a plaintiff must prove, in part, that the dangerous condition created a reasonably foreseeable risk of the kind of injury that occurred when the property is used with reasonable care.¿ (Gov. Code, §§ 830, 835; CACI Nos. 1100, 1102.)¿ “Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.”  (Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, 1466.)  “Reasonably foreseeable use with due care, as an element in defining whether property is in a dangerous condition, refers to use by the public generally, not the contributory negligence of the particular plaintiff who comes before the court; the particular plaintiff’s contributory negligence is a matter of defense.”  (Mathews v. City of Cerritos (1992) Cal.App.4th 1380, 1384.)  “So long as a plaintiff-user can establish that a condition of the property creates a substantial risk to any foreseeable user of the public property who uses it with due care, he has successfully alleged the existence of a dangerous condition regardless of his personal lack of due care.  If, however, it can be shown that the property is safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care, then such property is not “dangerous” within the meaning of section 830, subdivision (a).” (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131.)

Here, the City makes two arguments: (1) Plaintiff did not use the driveway with due care because he illegally[5] operated the Lime scooter[6] by riding on the sidewalk immediately before the incident and (2) after having consumed alcohol.  In support, the City offers Plaintiff’s testimony to establish Plaintiff was riding the scooter on the sidewalk immediately before encountering the asphalt patch, (Plaintiff’s Depo., pp. 38:14-39:10), and that he consumed alcohol before operating the Lime scooter, (Plaintiff’s Depo., p. 54:4-23).  Based on this evidence, the burden shifts to Plaintiff.

            Plaintiff counters that he did not ride the scooter illegally on the sidewalk because he was afraid of the speed and hazardous manner the cars were traveling on the road. (Plaintiff Depo. (Exh. A to Kramer Decl.), 39:20-24.)  Plaintiff points to CVC § 21229(a)(3) in support of his argument.  The vehicle code section allows a person to travel out of a bike lane “[w]hen reasonably necessary to leave the bicycle lane to avoid debris or other hazardous conditions.” (California Vehicle Code § 21229(a)(3).)  Next, Plaintiff argues because the incident happened in a driveway while transitioning from the sidewalk, he was not in violation of the various ordinances or codes, albeit he was transitioning from the sidewalk to the street and not the other way around.  Regardless of which way he was heading, Plaintiff argues he was allowed to be on the driveway area and that is where the accident happened. 

            With respect to the City’s argument that Plaintiff did not exercise due care because he drank alcohol, Plaintiff counters that he consumed one beer roughly two hours before he rode the scooter and was not intoxicated at the time he was riding.  Plaintiff creates a triable issue of material facts whether he was intoxicated at the time he was riding.     

In sum, a triable issue of material fact exists whether the “condition of the property creates a substantial risk to any foreseeable user of the public property who uses it with due care.” (Fredette, supra, 187 Cal.App.3d at p. 131.)  Plaintiff claims he was operating the scooter with due care and the injury that took place in the driveway was a foreseeable risk based upon the dangerous condition of the driveway.  Moreover, the City has not demonstrated as a matter of law that the property was safe when used with due care and that a risk of harm is created only when foreseeable users fail to exercise due care.” (Ibid.)

            2. Actual or Constructive Notice

A public entity is only liable if the “[t]he public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.” (Gov. Code, § 835(b).)

            a.  Actual Notice

A public entity has actual notice of a dangerous condition if it has actual knowledge of the existence of the condition and knew or should have known of its dangerous character.  (Gov. Code § 835.2(a).)  “To establish actual notice, ‘[t]here must be some evidence that the employees had knowledge of the particular dangerous condition in question’; ‘it is not enough to show that the [public entity’s] employees had a general knowledge’ that the condition can sometimes occur. [Citation.]”  (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 519.)

The City submits the Declarations of Tania Ochoa^[7] and Willie Owens to show the City did not have actual notice of the asphalt patch.  Ms. Ochoa is the attorney of record for the City.  (Reply, Ochoa Decl., ¶ 1.)  As part of her declaration, Ms. Ochoa submits the City’s amended responses to Plaintiff’s Special Interrogatories Nos. 9, 10, 11, and 12, served on May 24, 2023.  (Reply, Ochoa Decl., ¶ 4, Ex. H.)  The City’s initial responses indicated that the City performed the asphalt patch work.  However, the City’s amended responses clarify that the City did not perform the asphalt patch work.  The amended responses also explain that the City’s initial response was premised upon a work order for 500 E. Shoreline Drive.  500 E. Shoreline Drive is not the subject of this litigation. 

Mr. Owens is the Superintendent of Street Maintenance for the Public Service Bureau, Public Works Department in the City of Long Beach.  (Owens Decl., ¶ 1.)  Mr. Owens explains the City does not have any record, log, or document concerning the subject asphalt patch and location of the incident.  (Owen Decl., ¶ 5.)  Mr. Owens further states that because the subject asphalt patch is on a driveway that provides ingress and egress to the parking lot of the Long Beach Convention Center, LLC, the City would have no reason to perform a subject asphalt patch.  (Owens Decl., ¶ 13.)  As such, the City did not have actual notice of the asphalt patc, and the burden shifts to Plaintiff.

Plaintiff argues the City had actual notice because it performed the asphalt patch work.  However, Plaintiff bases this argument on the City’s initial discovery responses from September 21, 2021.  (See Declaration of Daniel K. Kramer, Ex. C.)  Plaintiff does not acknowledge or otherwise deal with the City’s amended responses.  As such, Plaintiff provides no evidence to the contrary and does not contest the foregoing conclusion.

            b.  Constructive Notice

To establish constructive notice under section 835.2, subdivision (b), a plaintiff must show the dangerous condition “existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”  Put another way, “[a] claim for constructive notice has two threshold elements. [Citation.] A plaintiff must establish that the dangerous condition has existed for a sufficient period of time and that the dangerous condition was obvious.” (Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 320 (Heskel).)  The defect must be “sufficiently obvious, conspicuous, and notorious that a public entity should be charged with knowledge of the defect.” (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 521; (Van Dorn v. San Francisco (1951) 103 Cal.App.2d 714, 719 [courts construing “obviousness” for the purpose of evaluating whether a public entity may be liable for failing to cure a dangerous condition have suggested the condition must be “conspicuous or notorious.”].)

Although the conspicuousness of the condition and the length of time it existed are normally questions of fact for resolution by the jury, they may be resolved as matter of law where the plaintiff’s evidence as to either element is legally insufficient. (Kotronakis v. City & County of San Francisco (1961) 192 Cal.App.2d 624, 629 [jury verdict for plaintiff reversed where there was no evidence the puddle of vomit in which plaintiff slipped had been on the sidewalk longer than overnight]; Heskel v. City of San Diego (2014) 227 Cal.App.4th 313, 318-319, 321 (Heskel) [summary judgment proper where plaintiff failed to provide evidence to rebut the City's showing the condition was not obvious].) Where the plaintiff fails to present direct or circumstantial evidence as to either element, the claim is deficient as a matter of law. (Heskel, 227 Cal.App.4th at p. 317.)

Here, the City focuses on the length of time of the condition.  The City argues Plaintiff failed to demonstrate the condition existed for a sufficient period of time to establish constructive notice.  Plaintiff presented evidence, albeit, as noted above, evidence not properly authenticated,  demonstrating the condition existed since at least March of 2015.  That is sufficient to raise a triable issue of material fact.

            3. Waiver of Claims

The City argues Plaintiff cannot prevail on his claims because he breached his Lime user agreement and waived any claims against the City.  In determining whether waiver bars Plaintiff’s claims, the Court must analyze three additional issues: (a) Whether the City is a third-party beneficiary of the Lime User Agreement, (b) Whether exculpatory contractual provisions violate the policy of the law, and (c) whether the Lime User Agreement is unconscionable.

            a.  Third-Party Beneficiary

“A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.”  (Civ. Code, § 1559.)  “In Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817…our high court set forth three prerequisites to apply this doctrine: (1) the third party would in fact benefit from the contract; (2) a motivating purpose of the contracting party was to provide a benefit to the third party; and (3) permitting a third party to bring its own breach of contract action against a contracting party is consistent with the objectives and the reasonable expectations of the contracting parties. [Citation.]” (Levy v. Only Cremations for Pets, Inc. (2020) 57 Cal.App.5th 203, 211-12.)  “The motivating purpose of the contracting parties must be to provide such a benefit to [the third party].”  (Goonewardene v. ADP, LLP (2019) 6 Cal.5th 817, 835, emphasis added.)  

 “ ‘Because third party beneficiary status is a matter of contract interpretation, a person seeking to enforce a contract as a third party beneficiary “ ‘must plead a contract which was made expressly for his [or her] benefit and one in which it clearly appears that he [or she] was a beneficiary.’ ” [Citation.] [¶.] “ ‘ “[E]xpressly[,]” [as used in [Civil Code section 1559] and case law,] means “in an express manner; in direct or unmistakable terms; explicitly; definitely; and directly.” ’ [Citations.] ‘An intent to make the obligation inure to the benefit of the third party must have been clearly manifested by the contracting parties.’ ” [Citation.] Although this means persons only incidentally or remotely benefitted by the contract are not entitled to enforce it, it does not mean both of the contracting parties must intend to benefit the third party. Rather, it means the promisor… ‘must have understood that the promisee...had such intent. [Citations.] No specific manifestation by the promisor of an intent to benefit the third person is required.’ ” ’ ” (Levy, supra, 57 Cal.App.5th at p. 212.)   

Here, the Lime User Agreement[8] expressly intends the City to be a third-party beneficiary.  The relevant terms of the Lime User Agreement are as follows:

5.1 Release: …“Released Persons” means, collectively ..., (ii) municipalities and public entities (including all of their respective elected and appointed officers, officials, employees and agents) which authorize Lime to operate any of its Services, …In exchange for being allowed to use any of the Services, and other equipment or related information provided by Lime, You (acting for You and for all of Your family, heirs, agents, affiliates, representatives, successors, and assigns) hereby fully and forever release and discharge all Released Persons for any and all Claims that You have or may have against any Released Person. Such releases are intended to be general and complete releases of all Claims. The Released Persons may plead such releases as a complete and sufficient defense to any Claim, as intended third party beneficiaries of such releases. You expressly agree to indemnify, release and hold harmless Released Persons from all liability for any such property loss or damage, personal injury or loss of life, regardless of the cause, whether based upon breach of contract, breach of warranty, active or passive negligence or any other legal theory, in consideration for using any of the Services.  (Emphasis added.)

7.1. Limited Liability: YOU HEREBY ACKNOWLEDGE AND AGREE THAT, EXCEPT AS MAY OTHERWISE BE LIMITED BY LAW, LIME AND ALL OTHER RELEASED PERSONS ARE NOT RESPONSIBLE OR LIABLE FOR ANY CLAIM, INCLUDING THOSE THAT ARISE OUT OF OR RELATE TO ..., (C) YOUR BREACH OF THIS AGREEMENT AND/OR YOUR VIOLATION OF ANY LAW, RULE, REGULATION, AND/OR ORDINANCE, INCLUDING RIDING ON SIDEWALKS AND/OR PARKING, (D) ANY NEGLIGENCE, MISCONDUCT, AND/OR OTHER ACTION AND/OR INACTION BY YOU, ... (F) ANY NEGLIGENCE, MISCONDUCT, AND/OR OTHER ACTION OR INACTION OF ANY THIRD PARTY.

7.4. Assumption of Risk by You: YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOUR USE OF ANY OF THE SERVICES, PRODUCTS, AND/OR RELATED EQUIPMENT, IS AT YOUR SOLE AND INDIVIDUAL RISK, AND THAT LIME AND THE RELEASED PERSONS ARE NOT RESPONSIBLE FOR ANY AND ALL CONSEQUENCES, CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, LIABILITIES, DAMAGES, INJURIES, FEES, COSTS AND EXPENSES, PENALTIES, ATTORNEYS’ FEES, JUDGMENTS, SUITS AND/OR DISBURSEMENTS OF ANY KIND, OR NATURE WHATSOEVER, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER KNOWN OR UNKNOWN. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT YOU FULLY UNDERSTAND THE RISKS ASSOCIATED WITH YOUR USE OF THE SERVICES, PRODUCTS, AND/OR RELATED EQUIPMENT, AND THAT YOU ASSUME SUCH RISK.

8. INDEMNIFICATION. 8.1. Indemnification: You agree to ... hold harmless the Released Persons from and against any and all consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, fees, costs and expenses, penalties, attorneys’ fees, judgments, suits settlements, and/or disbursements of any kind, or nature whatsoever, whether foreseeable or unforeseeable, and whether known or unknown, that directly or indirectly arise from or are related to any claim, suit, action, demand, or proceeding made or brought against any Released Person, or on account of the investigation, defense, or settlement thereof, arising out of or in connection with, whether occurring heretofore or hereafter: (i) Your use or misuse of the Services, Products, and/or related equipment, ..., (v) Your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental or quasi-governmental authorities in connection with Your use of the Services (including the Products) or Your activities in connection with the Services;

(Declaration of Anthony Maldonado, Ex. C, emphasis added.)

            Here, the City is a “municipality” or “public entity” and therefore a “Released Person” that “may plead such releases [of any and all Claims that You have or may have against any Release Person] as a complete and sufficient defense to any Claim, as intended third party beneficiaries of such releases.”  The Lime User Agreement is direct and unmistakable.  The motivating purpose of the foregoing language was to make the City an intended third-party beneficiary of the Agreement. 

            b. Exculpatory Provisions

            “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”  (Civ. Code, 1668.)  “A written release may exculpate a tortfeasor from future negligence or misconduct. [Citation.] To be effective, such a release ‘must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.’ (Ibid.) The release need not achieve perfection.”  (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356.) 

            “[T]he defendant bears the burden of raising the defense and establishing the validity of a release as applied to the case at hand.”  (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 780 n. 58 (citations omitted); see also Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 733-34 [Defendant bears the burden of establishing that the liability waiver is “binding and enforceable.”].)  “Generally, all persons are legally responsible for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property. (Civ. Code, § 1714, subd. (a).) However, an exculpatory contract releasing a party from liability for future ordinary negligence is valid unless it is prohibited by statute or impairs the public interest.”  (Joshi v. Fitness Int'l, LLC (2022) 80 Cal.App.5th 814, 824.)

            The leading case on determining whether an exculpatory clause within a contract violates public policy is Tunkl v. Regents of University of California (1963) 60 Cal.2d 92.  Tunkl held contractual language exculpating a party from responsibility was invalid under Civil Code section 1668 because it affected the public interest. (Id., at p. 101.)  In determining whether a contract contravenes public policy, the California Supreme Court has identified six characteristics to be considered: [1] It concerns a business of a type generally thought suitable for public regulation.  [2] The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public.  [3] The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards.  [4] As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services.  [5] In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. [6] Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents. (Id. at pp. 98-101.)  “California courts have consistently declined to apply Tunkl and invalidate exculpatory agreements in the recreational sports context.”  (Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1259 [collecting cases].)

            Here, it is undisputed Plaintiff agreed to the terms of the Lime User Agreement.  However, it is not clear whether the Lime User Agreement contravenes public policy.  On the one hand, the Limer User Agreement concerns public transportation.  Public transportation is a publicly regulated activity.  The Court has no trouble concluding public transportation is a service of great importance and practical necessity to the public.  The Lime User Agreement clearly constitutes a contract of adhesion, though it is unclear whether a member of the public could pay additional reasonable fees and obtain protection against negligence when using a Lime scooter.  At least no party presents evidence for or against this factor.  Nor is it clear whether the use of Lime scooters is an essential service.  Public transportation is essential in the general sense; whether Lime scooters fulfills a similarly essential role as opposed to a recreational one is yet another matter that has not been examined by the parties.  The parties’ undeveloped arguments regarding the Tunkl factors do not permit the Court to decide whether the Lime User Agreement contravenes public policy.

            The Court will hear from the parties (and may request further briefing on this issue).

                        c.  Unconscionability

            “[U]nconscionability has both a ‘procedural’ and a ‘substantive’ element, the former focusing on ‘oppression’ or ‘surprise’ due to unequal bargaining power, the latter on ‘overly harsh’ or ‘one-sided’ results.”¿ (Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114, citations omitted.)  These elements are evaluated on a “sliding scale”: “the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.”¿ (Ibid.)¿ The unconscionability defense requires a showing of both procedural and substantive unconscionability.¿(Ibid.)¿¿¿¿ 

            “A procedural unconscionability analysis ‘begins with an inquiry into whether the contract is one of adhesion.’”¿ (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126 (OTO); accord, Armendariz v. Foundation Health Psychcare Services, Inc. (2000)¿24 Cal.4th 83, 113.)¿ An adhesive contract is standardized, generally on a preprinted form, and offered by the party with superior bargaining power “on a take-it-or-leave-it basis.”¿ (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1245; see OTO, at p. 68; Armendariz, at p. 113.)¿ The pertinent question, then, is whether circumstances of the contract’s formation created such oppression or surprise that closer scrutiny of its overall fairness is required.¿ (See¿Baltazar,¿at pp. 1245-1246;¿Farrar v. Direct Commerce, Inc.¿(2017) 9 Cal.App.5th 1257, 1267-1268.)¿ “Oppression¿occurs where a contract involves lack of negotiation and meaningful choice,¿surprise¿where the allegedly unconscionable provision is hidden within a prolix printed form.” (Pinnacle, supra, 55 Cal.4th at p. 247; see¿De La Torre v. CashCall, Inc.¿(2018) 5 Cal.5th 966, 983 [cleaned up].)¿¿¿ 

            “Substantive unconscionability examines the fairness of a contract’s terms. . . . [The] ‘doctrine is concerned not with “a simple old-fashioned bad bargain” [citation], but with terms that are “unreasonably favorable to the more powerful party.’” [Citation.]¿ Unconscionable terms “‘impair the integrity of the bargaining process or otherwise contravene the public interest or public policy’” or attempt to impermissibly alter fundamental legal duties.”¿ (OTO, supra, 8 Cal.5th at p. 130; accord, Baltazar, supra, 62 Cal.4th at pp. 1244-1245; Lange v. Monster Energy Co. (2020) 46 Cal.App.5th 436, 448.)¿¿¿ 

            Plaintiff argues, generally, that the Lime User Agreement is procedurally and substantively unconscionable.  As the analysis also concerns whether the Lime User Agreement contravenes the public interest or public policy, the Court will hear from the parties.

VI.       CONCLUSION

            The Court will hear from the parties regarding the Tunkl factors and unconscionability of the Lime User Agreement.