Judge: Mark A. Young, Case: 20STCV09369, Date: 2022-09-27 Tentative Ruling

Case Number: 20STCV09369    Hearing Date: September 27, 2022    Dept: M

CASE NAME:           Magana v. Bird Rides, Inc.

CASE NO.:                20STCV09369 

MOTION:                  Demurrer to the Second Amended Complaint

HEARING DATE:   9/27/2022

TENTATIVE RULING

Defendant Bird Rides Inc.’s demurrer is OVERRULED, and its motion to strike is DENIED.

BACKGROUND

On March 6, 2020, Plaintiff Lorrena Magana filed the instant personal injury action against Defendant Bird Rides Inc. The operative Second Amended Complaint alleges that on March 11, 2018, Plaintiff rented a scooter from Defendant. Plaintiff was assured by Defendants, and each of them, through their promotional materials and on-line materials that the subject electric scooter was in good condition and maintained by Defendants in a safe manner. While riding the scooter, the acceleration throttle malfunctioned, causing the scooter to accelerate uncontrollably. As a result, Plaintiff was unable to control the scooter and was thrown to the ground. The SAC states four causes of action for gross negligence, strict product liability, fraud, and negligence.

On June 7, 2022, Defendant filed the instant demurrer to the fraud cause of action, and motion to strike punitive damages. Plaintiff opposes.

Legal Standard

            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. 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. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)

            A special demurrer for uncertainty is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her. (CCP § 430.10(f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

            Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (CCP § 435(b)(1); Cal. Rules of Court, Rule 3.1322(b).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (CCP §§ 436(a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

            “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) The burden is on plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Id.)

MEET AND CONFER

Before filing a demurrer or motion to strike, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading. (CCP §§ 430.41, 435.5.) Counsel’s declaration meets the requirements.

Analysis

Demurrer

            Defendant demurs to the fraud claim, arguing that Plaintiff has failed to meet the heightened pleading standard for fraud.

            To state a claim for fraud, a party must plead (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (or “scienter”); (3) intent to defraud, i.e. to induce reliance; (4) justifiable reliance; and (5) resulting damage. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 973, as modified (July 30, 1997) [quoting Lazar v. Superior Court¿(1996) 12 Cal.4th 631, 638, quotation marks omitted].) In California, fraud, including negligent misrepresentation, must be pled¿with specificity. (Small v. Fritz Companies, Inc.¿(2003) 30 Cal.4th 167, 184.) “The particularity demands that a plaintiff plead facts which show how, when, where, to whom, and by what means the representations were tendered.” (Cansino¿v. Bank of America¿(2014) 224 Cal.App.4th 1462, 1469.)¿“[I]n the case of a¿corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the¿corporation, to whom they spoke, what they said or wrote, and when the representation was made. (West v. JPMorgan Chase Bank, N.A.¿(2013) 214 Cal.App.4th 780, 793.)¿ 

            The SAC focuses on active misrepresentations made by Bird’s Chief Technology Officer Justin Balthrop through Bird’s marketing and advertising materials found on their smart phone application. Specifically, on March 11, 2018, Plaintiff reviewed such marketing materials which contained active misrepresentations claiming that the subject scooters were “safe to operate” and “routinely inspected and maintained.” (SAC ¶47.) Further, said materials made no mention of the severe safety defects that were known by defendants at that time to exist in electric scooter model MI 365. (SAC ¶¶43-46, 48.) Plaintiff relied on these active misrepresentations. (SAC ¶49.) The SAC shows how, when where, to whom, and by what means the misrepresentations were made. The SAC also specifically identifies Defendant’s CTO as providing the misrepresentations.

            Defendant argues that this is insufficient because, as a matter of fact, the “Safety” sections and the Rental Agreement do not contain any of the three affirmative misrepresentations listed above, or anything like them. (See Nese Declaration, Ex. 1, 2.) Defendant does not request judicial notice of this, and judicial notice would not be proper. Thus, Defendant relies on extrinsic evidence in support of their demurrer. The Court cannot consider such evidence at the pleading stage.

            Accordingly, Defendant’s demurrer is OVERRULED.

Motion to Strike

The SAC bases the punitive damages on allegations of fraud. “‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Civ. Code, § 3294(c)(3).)  As discussed above, the SAC states a claim for fraud, which included intentional misrepresentations to deprive Plaintiff of property. (SAC ¶¶63-65.)

Accordingly, Defendant’s motion is DENIED.

Defendant is ordered to answer within 10 days.