Judge: Michael E. Whitaker, Case: 20STCV30522, Date: 2023-01-13 Tentative Ruling

Case Number: 20STCV30522    Hearing Date: January 13, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment, or in the alternative Summary Adjudication; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication
3. Declaration of Sarah G. Odegaard in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication
4. Appendix of Evidence in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication
5. Declaration of Jonathan Grubb in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment, or in the alternative Summary Adjudication; Memorandum of Points and Authorities (hereafter, “Plaintiff’s Opposition”)
2. Separate Statement in Opposition to Defendant’s Motion for Summary Judgment, or in the alternative Summary Adjudication
3. Appendix of Evidence in Opposition to Defendant’s Motion for Summary Judgment, or in the alternative Summary Adjudication
4. Declaration of Robert Lawrence in Opposition to Defendant’s Motion for Summary Judgment, or in the alternative Summary Adjudication
5. Declaration of Kia Sinay in Opposition to Defendant’s Motion for Summary Judgment, or in the alternative Summary Adjudication
6. Declaration of K.T. Tran in Opposition to Defendant’s Motion for Summary Judgment, or in the alternative Summary Adjudication
7. Objections to Evidence Submitted in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication

REPLY PAPERS:

1. Reply in Support of Motion for Summary Judgment, or in the alternative Summary Adjudication
2. Response to Plaintiff’s Separate Statement in Support of Opposition to Defendant’s Motion for Summary Judgment
3. Opposition to Plaintiff’s Objections to Defendant’s Evidence  
4. Objections to Plaintiff’s Evidence in Support of Opposition to Motion for Summary Judgment

BACKGROUND

Plaintiff Robert Lawrence (Plaintiff) sued Defendant Bird Rides, Inc. (Defendant) for negligence and public nuisance based on injuries Plaintiff sustained when he tripped and fell over an electric scooter owned by Defendant which was allegedly lying flat on a sidewalk.  Defendant moves for summary judgment, or in the alternative summary adjudication, on Plaintiff’s complaint.   Plaintiff opposes the motion.  Defendant replies to the opposition.

LEGAL STANDARDS –SUMMARY JUDGMENT/SUMMARY ADJUDICATION

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  

“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.  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 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Id. at p. 840 [cleaned up]; 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”].) 

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed.  (See Code Civ. Proc., § 437c, subd. (f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)  A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action.  (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.)  Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action.  (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.) 

EVIDENCE  

With respect to Plaintiff’s evidentiary objections, the Court finds Plaintiff’s objections do not comply with the requirements set forth in California Rules of Court, rule 3.1354.  Rules 3.1354 provides in pertinent part:

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

(3) Quote or set forth the objectionable statement or material; and

(4) State the grounds for each objection to that statement or material.

Written objections to evidence must follow one of the following two formats:   [¶] . . . [¶]

A party submitting written objections to evidence must submit with the objections a proposed order. The proposed order must include places for the court to indicate whether it has sustained or overruled each objection. It must also include a place for the signature of the judge. The court may require that the proposed order be provided in electronic form. The proposed order must be in one of the following two formats:  [¶] . . . [¶]

(See Cal. Rules of Court, rule 3.1354(b)-(c), emphasis added.)  Here, Plaintiff did not number each objection consecutively nor separately and adequately define each piece of evidence he was objecting to.  Plaintiff did not submit a proposed order following one of the prescribed formats.  Nevertheless, the Court overrules Plaintiff’s evidentiary objections.

            Regarding Defendant’s evidentiary objections to the Declaration of Robert Lawrence, the Court rules as follows:

1. Sustained.

2. Overruled

3. Overruled

4. Overruled

5. Overruled

6. Overruled

7. Overruled

8. Overruled

9. Overruled

            Regarding Defendant’s evidentiary objections to the Declaration of Kia Sinay, the Court rules as follows:

1. Overruled

DISCUSSION

            Plaintiff’s complaint asserts causes of action for negligence and public nuisance against Defendant.   Defendant moves for summary judgment, or in the alternative, summary adjudication, arguing that Defendant did owe a duty of due care to Plaintiff, did not breach a duty of due care to Plaintiff, and Defendant’s breach of a duty of due care did not cause or contribute to Plaintiff’s alleged injuries.    

1. ELEMENTS: NEGLIGENCE AND PUBLIC NUISNCE

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) 

To establish [a claim of public nuisance], [name of plaintiff] must prove all of the following:

1. That [name of defendant], by acting or failing to act, created a condition or permitted a condition to exist that [insert one or more of the following:]

[was harmful to health;] [or]

[was indecent or offensive to the senses;] [or]

[was an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property;] [or]

[unlawfully obstructed the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway;] [or]

[was [a/an] [fire hazard/specify other potentially dangerous condition] to [name of plaintiff]’s property;]

2. That the condition affected a substantial number of people at the same time;

3. That an ordinary person would be reasonably annoyed or disturbed by the condition;

4. That the seriousness of the harm outweighs the social utility of [name of defendant]'s conduct;

[5. That [name of plaintiff] did not consent to [name of defendant]'s conduct;]

6. That [name of plaintiff] suffered harm that was different from the type of harm suffered by the general public; and

7. That [name of defendant]'s conduct was a substantial factor in causing [name of plaintiff]'s harm.

(Judicial Council Of California Civil Jury Instruction 2020; see also Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1548.) “The elements of a cause of action for public nuisance include the existence of a duty and causation.”  (Melton v. Boustred (2010) 183 Cal.App.4th 521, 542 [cleaned up].)  “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim. The nuisance claim stands or falls with the determination of the negligence cause of action in such cases.”  (Ibid. [cleaned up].) 

1. DEFENDANT’S EVIDENCE

    

               Defendant the following Undisputed Material Facts (UMFs), with supporting evidence, in support of its summary judgment motion, or in the alternative, summary adjudication motion.  Those Undisputed Material Facts are as follows: 

    

• Bird operates an on-demand personal electric scooter sharing network.
• A person seeking transportation via a Bird scooter must download the Bird Mobile Application (“Bird App”) on his or her smartphone, create an account, and use the Bird App to locate and rent a scooter (collectively, “Bird Platform”).
• Bird uses global positioning satellite (“GPS”) technology to determine the user’s location and to identify nearby scooters that the user may rent.
• The user unlocks a scooter through the Bird App and then rides the scooter.
• At the end of the ride, the user pays a scooter rental fee through the Bird App. The scooter is then available for others to rent.
• In order to rent a Bird scooter, a user must first download the Bird App and create an account.
• Once the Bird App is downloaded and an account is created by the user, the user must compel multiple steps in order to sign up with and access the Bird Platform before being allowed to rent a Bird scooter.
• As part of the sign up process to be allowed to have access to rent a Bird scooter, a user must review the entirety of the Bird Rental Agreement and follow three steps to accept it.
• To accept the Bird Rental Agreement, a user must first scroll and read through the entirety of the Bird Rental Agreement, which is displayed on the Bird App.
• To accept the Bird Rental Agreement, the second step after scrolling and reading the entirety of the Bird Rental Agreement is that the user must check two boxes confirming the acceptance of the terms and conditions set forth in the Bird Rental Agreement, including certain highlighted sections.
• The third step for accepting the Bird Rental Agreement is that the user must click the “I AGREE” button at the end of the Bird Rental Agreement.
• It is technologically impossible for a user to complete the sign-up process to become a Bird rider and thereby unlock and rent a Bird scooter without first completing those three steps in the Bird App, as the scooter’s wheels remain disabled and the motor will not engage without completion of those three steps as part of the first ride.
• It is impossible for someone to ride a scooter once a new version of the Bird Rental Agreement is released without expressly agreeing to the Bird Rental Agreement in effect.
• At all times, including before and after acceptance, the current Bird Rental Agreement is available to users to review via the Bird App by navigating to “Settings” then “Rental Agreement.” The current Bird Rental Agreement is also available on Bird’s website at https://www.bird.co/agreement/.
• The Bird Rental Agreement was in effect between Bird and its users at the time of the subject incident on July 3, 2019.
• The Bird Rental Agreement includes instruction to Bird users on scooter use, which includes the topic of parking of Bird Scooters.
• Section 1.8 of the Bird Rental Agreement states Riders agree to do the following, “The Vehicle must not be parked at a prohibited parking spot. The Vehicle cannot be parked on unauthorized private property, in a lock area, blocking the right of way, or in any other unapproved non-public space. You should not park the Vehicle in heavily trafficked areas if the Vehicle is in danger of being knocked down.”
• Section 1.8 of the Bird Rental Agreement further states that Riders agree to do the following, “The Vehicle must be parked in a space that is visible, and in an upright position using the kickstand.”
• Users of the Bird App are also provided instruction on safety, including the subject of parking scooters, during the onboarding process.
• After signing up for the Bird App and agreeing to the Bird Rental Agreement, users of the Bird App are required to review multiple screenshots with instruction on use of the Bird scooter before being allowed to use a scooter.
• The instructions to users for the onboarding process were in effect at the time of the subject incident.
• As part of the onboarding process, users are instructed on how to safely park scooters in designated spots to help keep sidewalks clear as part of this onboarding tutorial.
• As part of the onboarding process, users are instructed of “Local Rules” for purposes of renting a scooter.
• The “Local Rules” reviewed by users of the Bird App provide the following instructions to users: · Audibly inform pedestrians when passing · You must be 18 years old to ride · No double riding · Wear a helmet · Only ride within the city limits · Birds must be parked in the street furniture zone, careful not to block ramps, doorways, or walkways
• During the onboarding process, users of Bird scooters are further instructed on the Bird Platform to not block public pathways.
• During the onboarding process, users of Bird scooters are instructed to park by bike racks when available to avoid blocking public pathways.
• Users of the Bird App are also provided with instruction at the conclusion of each ride to park safely and out of the public right of way.
• As a component of the Bird App, users are required to take a photograph of the scooter at the conclusion of each ride through the Platform.
• At the end of each ride on the Bird App, users are instructed to “Snap a photo of your Bird parked safely and out of the public right of way.”

(UMF Nos. 23-51.) 

            Further, Defendant advances the declaration of Jonathan Grubb, Senior Director of City Technology for Defendant since 2018 who avers to the following:

• Bird captures certain information that is automatically generated by each user and each ride on the Bird Platform, as well as service tasks associated with each scooter, including the tasks of picking up, charging, or dropping off a scooter. I have access to this information as part of my role as Bird’s Senior Director City Technology, and I am familiar with how the data is created, maintained, and stored by Bird in the ordinary course of its business. I have conducted a review of Bird’s records for all Bird scooters matching the type described and identified by Plaintiff as the one he purportedly tripped over at the time of the subject incident and located at or near the location of the subject incident of Main Street near Bicknell Avenue in Santa Monica, California, prior to 8:45 a.m. on July 3, 2019. This includes all scooters that sent out a ping whether active in a ride or parked in the area. My review of the records indicates that there was only one Bird scooter parked at or near the location of where the subject incident occurred at or before 8:45 a.m. on July 3, 2019. This ride, identified as ID No. 51d8100a-9d2a-4f42-ad32- 880df74a18f1, began at 8:34 a.m. on July 3, 2019, at or near the location of 10th Street and Washington Avenue, Santa Monica, California. This ride ended at 8:45 a.m. on July 3, 2019, at or near the location of Main Street near Bicknell Avenue in Santa Monica, California. The user for this ride submitted an end ride photograph upon completion of the ride. Below is a true and correct copy of the end ride photograph submitted by the user of the Bird scooter who parked the it (sic) at the location of Main Street near Bicknell Avenue at approximately 8:45 a.m. on July 3, 2019. No other Bird scooters were parked at this location prior to 8:45 a.m. on July 3, 2019. A true and correct copy of the end of ride photograph submitted by the Bird user on July 3, 2019 is attached as Exhibit E.

(Declaration of Jonathan Grubb, ¶ 24, emphasis added, Exhibit E; see also UMF Nos. 4, 12.)

1. PLAINTIFF’S EVIDENCE

    

               In opposition Plaintiff advances his declaration in which he declares as follows:

    

• I first notice the Bird Rides e-scooters appearing in the streets and sidewalks of Santa Monica and adjoining cities as early as the fall of 2017 and they became ubiquitous in  2018.

• The appearance of the Bird Rides e-scooters took up a lot of space and interfered with pedestrians and drivers that wish to use the sidewalks and streets, such as myself. I did not consent or agree, nor was I asked or consulted with prior to the release of the Bird Rides escooters onto the street of Santa Monica and adjoining cities.

• I had concerns with the safety of the public at large because I notice that a lot of these Bird Rides e-scooters were not being properly managed by the company in that a lot of users were breaking the law by riding on the sidewalks and leaving the vehicle parked on the sidewalk.

• July 3, 2019, I tripped and fell over a Bird Rides e-scooter that was left, lying flat on its side in the middle of the sidewalk on Main Street, in front of the parking lot, on the west side of the street between Strand Street and Hollister Avenue.

• I was on my way to yoga class that day at Yoga Works, which used to be located at 2215 Main Street, Santa Monica, California, before they closed that location. I remember the accident happened across the street and about one half of a block north from Yoga Works.

• I took three photographs of the e-scooter on the date that I fell. I did not move the e-scooter before I took the photograph and the location of where I fell on Main Street between Strand Street and Hollister Avenue is accurate as to where the scooter laid when I tripped and fell. Attached as Exhibit 1-3 to this declaration are true and correct copies of these photographs.

• I have also reviewed a photograph that Bird Rides Inc. presented to my attorney, and attached to the Declaration of Jonathan Grubb, in Support of Defendant's Motion for Summary Judgment, or in the Alternative, Summary Adjudication ("Grubb's Declaration"). This is not the same Bird Rides e-scooter that I tripped and fell on July 3, 2019. It is located in a different area then the area that I tripped and fell. Additionally, the photograph itself, clearly shows that thee-scooter attached to Grubb's Declaration is in a different location because the scooter is parked next to a parking meter which is less than a foot away from a skinny tree. The photographs that I took shows that the Bird Rides e-scooter that I tripped on was lying next to a parking meter that was located several yards from a much thicker tree. Further, the thicker tree depicted in my photograph was next to a public trash can, and there is no trash can in the photograph attached to Grubb's Declaration.

• I fear that many more trips and fall related accidents, besides the ones that have already occurred, will continue to happen due to the irresponsibility of Bird Rides Inc in how the operate their business.

• For instance, on September 13, 2019, I was on my way to dinner Gjelina, located at 1429 Abbot Kinney Boulevard, in Venice when I noticed that an elderly woman was unable to cross the street because the entire sidewalk at the crosswalk was obstructed by at least five e-bird scooters lying on the sidewalk.

• Attached as Exhibit 4 is a true and correct copy of a photograph I took on September 13, 2019 of the Bird vehicles lying face down in the middle of Abbott Kinney Boulevard.

(Declaration of Robert Lawrence, ¶¶ 3-12, emphasis added.)  In addition, Plaintiff proffers his deposition testimony in which Plaintiff testified as to the location of the subject incident:  “That was on Main Street in Santa Monica, near Strand Avenue.  It was on the southwest corner of Strand and Main.”  (See Declaration of K.T. Tran, Exhibit 1, 25:13-18.)   Further, Plaintiff advances the declaration of Kia Sinay who states as follows:

• I am an eyewitness of an accident on the date of July 3, 2019, whereby I witnessed Robert Lawrence trip and fall on a Bird scooter that was laying flat on its side in the middle of the sidewalk. From my memory, the accident happened on Main Street in front of the parking lot on the west side of the street between Strand Street and Hollister Avenue.

• I know this to be the location of the accident because I went to yoga class that day at at (sic) YogaWorks, which used to be located at 2215 Main Street, Santa Monica, California, before they closed that location. I remember the accident happened across the street and about one half of a block north from YogaWorks.

• I remember I thinking to myself that it was a dramatic fall and that he really needed help.

(Declaration of Kia Sinay, ¶¶ 3-5.) 

            “The purpose of a motion for summary judgment is to discover proof, to expedite litigation, and to provide for prompt disposition of actions where there is, in fact, no triable issue.”  (Versa Technologies, Inc. v. Superior Court (1978) 78 Cal.App.3d 237, 240, emphasis added.)  Stated differently, if there is one triable issue of material fact, a trial court is without authority to grant a motion for summary judgment or summary adjudication.  That is the precisely what is before this Court. 

            There is triable issue of material fact as to the location of the subject incident:  to wit, did the subject incident take place on Main Street near Bicknell Avenue as illustrated in Exhibit E to the Grubb’s declaration?  Or did the subject incident take place on Main Street between Strand Street and Hollister Avenue as declared by Plaintiff and Kia Sinay?  Equally important is whether the scooter depicted in Exhibit E of Grubb’s declaration is the same scooter depicted in Exhibits 1-3 of Plaintiff’s declaration.  If it is the same scooter, Defendant may not be liable to Plaintiff because the reasonable inference is that a third party created the hazard that caused or contributed to Plaintiff’s alleged injuries, not Defendant.  On the other hand, if it is not the same scooter, then Defendant may be liable to Plaintiff because it created or contributed to the risk of harm to Plaintiff.  There is no evidence in the record that the same scooter is depicted in photos proffered by the parties. [1]

CONCLUSION AND ORDER

In considering the competent evidence proffered by Plaintiff and Defendant, and viewing said evidence most favorable toward Plaintiff, the Court finds that there are triable issues of material fact concerning whether Defendant owed Plaintiff a duty of due care; whether Defendant’s breached the duty of due care; and whether Defendant’s breach of the duty of due care caused or contributed to Plaintiff’s injuries.  In particular, the Court finds that there are triable issues of material fact concerning Defendant’s Undisputed Material Facts 4 and 12.  In other words, the Court cannot find as a matter of law that Plaintiff cannot establish the requisite elements of his claims of negligence and public nuisance. 

Therefore, the Court denies Defendant’s motion for summary judgment or in the alternative motion for summary adjudication. 

The Clerk of the Court shall provide notice of the Court’s ruling.