Judge Michael E. Whitaker, Case 21STCV30927 2023-03-23 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21STCV30927, Date: 2023-03-23 Tentative Ruling

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.

Plaintiff Corina Hernandez (Plaintiff) sued Defendant Bird Rides, Inc. (Bird) based on injuries Plaintiff alleges she sustained when she tripped over a Bird scooter lying in the middle of a sidewalk.

Bird demurs to Plaintiff’s Complaint which alleges the following four causes of action against Bird: (1) Negligence, (2) Negligence Per Se, (3) Negligent Infliction of Emotional Distress (NIED), and (4) Violation of Business and Professions Code section 17200 et Seq. Plaintiff opposes the demurrer. Bird replies.

Under Evidence Code section 451, “[j]udicial notice shall be taken of . . . [t]he decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution.” (Evid. Code, § 451, subd. (a).) Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (d) Records of (1) any court of this state or (2) any court of record of the United States or of any state of the United States. (f) The law of an organization of nations and of foreign nations and public entities in foreign nations. (g) Facts and propositions that are of such common knowledge within the territorial jurisdiction of the court that they cannot reasonably be the subject of dispute. (h) Facts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (a)-(h).)

The Court shall grant Bird’s request for judicial notice of the Dockless Mobility Annual Permit for Los Angeles Department of Transportation pursuant to Evidence Code section 452, subdivision (h).

“It is black letter law that a demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) In ruling on a demurrer, the court must “liberally construe[]” the allegations of the complaint. (Code Civ. Proc., § 452.) “This rule of liberal construction means that the reviewing court draws inferences favorable to the plaintiff, not the defendant.” (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238.)

Bird demurs to the first three causes of action in the Complaint which are based in negligence: negligence, negligence per se, and NIED. Specifically, Bird argues the complaint fails to allege that Bird owed a duty of care to Plaintiff to protect her from the actions of third parties—namely, the unknown individual who placed the scooter on the sidewalk. Bird further argues Plaintiff has failed to plead any facts demonstrating a special relationship or any affirmative act that would give rise to a duty of care under a negligence theory.

“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.” (Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 834 [cleaned up]; see also Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) “[W]hile negligence is ordinarily a question of fact, the existence of a duty is generally a question of law that may be addressed by demurrer. (Paul v. Patton (2015) 235 Cal.App.4th 1088, 1096.)

“To state a cause of action for negligence, a plaintiff must establish the defendant owed a legal duty of care. Generally speaking, all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (hereafter Brown).) In general, “[e]veryone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714.) Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, supra, 11 Cal.5th at p. 214.)

Bird argues it does not owe a legal duty to Plaintiff to protect Plaintiff from the conduct of third parties, because Bird does not have a special relationship with either Plaintiff or the subject third party responsible for improperly parking the Bird scooter in question. Bird further argues that Plaintiff has failed to plead how Bird participated in misfeasance or in other words what affirmative actions that Bird undertook that created a peril that led to Plaintiff’s injury.

In opposition, Plaintiff argues Bird’s misfeasance – that is, placing its e-scooters on pedestrian sidewalks – created the peril, risk and danger. Plaintiff therefore contends Bird owed Plaintiff a duty because she was a foreseeable victim of the dangerous condition Bird had created by making their scooters available to the public and failing to address the issue of said scooters being left unattended on the sidewalk.

· On or around August 21, 2019, Plaintiff was walking on W Olympic Blvd sidewalk at or near the BOH located at 3267 W Olympic Blvd, Los Angeles, CA 90006 when she tripped and fell over a Bird electric scooter that had been left on unattended in the middle of the sidewalk.

· Bird failed to ensure that its scooter was upright and properly parked and failed to ensure its scooter was not parked in a way that impeded clearance on the sidewalk in violation of the California Vehicle Code and the Los Angeles Department of Transportation (“LADOT”) Dockless On-Demand Personal Mobility Permit Rules (“Mobility Rules”).

· Defendant Bird and DOES 1 to 30, inclusive, and each of them, owed the Plaintiff a legal duty of care in owning, maintaining, operating, and controlling their electric scooters.

· Defendant Bird and DOES 1 to 30, inclusive, and each of them, owed the Plaintiff a legal duty of care in owning, maintaining, operating, and controlling their electric scooters, which included the duty to comply with all applicable state and local laws governing Plaintiff’s rights, including inter alia, California Vehicle Code § 21235, and in preventing their parked scooters from creating dangerous conditions.

· Defendant Bird and DOES 1 to 30, inclusive, and each of them, breached one or more of the duties established by Cal Veh Code § 21235 and the LADOT Mobility Rules.

· In breach of their said duties, Defendants and DOES 1 to 60, inclusive, and each of them knew, or in the exercise of reasonable care should have known that the unattended and parked electric scooters left in the middle of the sidewalk at the Premises, constituted a dangerous threat to health and unreasonable risk of harm to Plaintiff, and as a proximate result of this breach of Defendants duties, Plaintiff has suffered greatly.

· As a proximate result of negligence of Defendants and DOES 1 to 60, inclusive, and each of them, Plaintiff was seriously injured in her health, strength, and activity, sustaining injury to her body, and shock and injury to her person, all of which injuries has caused and continue to cause Plaintiff great mental, physical and nervous pain and suffering.

· The negligent acts and omissions detailed above Defendants and DOES 1 to 60, inclusive, and each of them was a substantial factor in bringing about and resulting in Plaintiff’s injuries and losses.

· As a direct and proximate result of the aforesaid negligence of Defendants and DOES 1 to 60, inclusive, and each of them, Plaintiff has sustained general and economic damages, in amounts to be determined at trial.

The Court finds Plaintiff has sufficiently pled the ultimate facts necessary to state a cause of action for the causes of action sounded in negligence. Ultimate facts are those “constituting the cause of action” or those upon which liability depends, e.g., duty of care, breach of the duty and causation (damages). (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) “[T]he complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form a part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School District (2012) 53 Cal.4th 861, 872 [at pleading stage, plaintiff need not specify which of defendant’s employees committed negligent acts or omissions].)

Accordingly, for pleading purposes, the Court finds that Plaintiff has alleged facts sufficient to constitute cognizable causes of action for negligence, negligence per se and NIED.

Bird demurs to Plaintiff’s fourth cause of action for unlawful, fraudulent, and unfair business acts and practices under Business and Professions Code section 17200, et seq. arguing the Complaint fails to plead how or in what way Bird engaged in a business practice that is unfair, unlawful or fraudulent.

Business and Professions Code section 17200 provides: “As used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” (Bus. & Prof. Code, § 17200.) “The Legislature intended this sweeping language to include anything that can properly be called a business practice and that at the same time is forbidden by law. In drafting the act, the Legislature deliberately traded the attributes of tort law for speed and administrative simplicity. As a result, to state a claim under the act one need not plead and prove the elements of a tort. Instead, one need only show that members of the public are likely to be deceived.” (Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1266-1267.)

To establish standing under Business and Professions Code section 17204, a private party must have “suffered injury in fact and [have] lost money or property as a result of the unfair competition.” (Bus. & Prof. Code, § 17204.) The Court of Appeal further explained these particularized requirements for standing by a private party in Bower v. AT&T Mobility, LLC:

Although section 17200 contains sweeping language as to what is considered a business practice, standing to sue under the statute, as defined by Business and Professions Code section 17204, is confined to any person who has suffered injury in fact and has lost money or property as a result of unfair competition. In other words, to have standing to bring a section 17200 cause of action, a plaintiff must (1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that the economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim. As to the injury in fact, or economic injury, requirement, the injury must be an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.

(Bower v. AT&T Mobility, LLC (2011) 196 Cal.App.4th 1545, 1554 [cleaned up] [emphasis in original].)

As the California Supreme Court explained in Kwikset Corp. v. Superior Court, “[t]here are innumerable ways in which economic injury from unfair competition may be shown. A plaintiff may (1) surrender in a transaction more, or acquire in a transaction less, than he or she otherwise would have; (2) have a present or future property interest diminished; (3) be deprived of money or property to which he or she has a cognizable claim; or (4) be required to enter into a transaction, costing money or property, that would otherwise have been unnecessary.” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 323.) “If a party has alleged or proven a personal, individualized loss of money or property in any nontrivial amount, he or she has also alleged or proven injury in fact. Because the lost money or property requirement is more difficult to satisfy than that of injury in fact, for courts to first consider whether lost money or property has been sufficiently alleged or proven will often make sense. If it has not been, standing is absent and the inquiry is complete. If it has been, the same allegations or proof that suffice to establish economic injury will generally show injury in fact as well[], and thus it will again often be the case that no further inquiry is needed.” (Id. at p. 325.)

With respect to the fourth cause of action, Plaintiff alleges in relevant part the following:

· Plaintiff realleges and incorporates by reference every allegation contained in this Complaint as though set forth herein in full.

· Defendant Bird and DOES 1 to 30, inclusive, and each of them, are permitted to operate their electric scooters by permit via the LADOT Dockless Shared Mobility Program.

· Defendant Bird and DOES 1 to 30, inclusive, and each of them, knew that Plaintiff and other similarly situated pedestrians in the City of Los Angeles are affected by their business model in which riders of their electric scooters park the scooters on the sidewalk unattended throughout the City of Los Angeles including the Premises.

· Defendant Homeowner and DOES 1 to 60, inclusive, and each of them, have engaged in unfair, unlawful and/or fraudulent business acts or practices in violation of Bus. & Prof. Code § 17200 et seq. and have created injury and harm to Plaintiff as well as the general public. Plaintiff reserves the right to identify additional violations of California, municipal, and other laws committed by Defendant Homeowner and DOES 1 to 60, inclusive, and each of them, as further investigation reveals and warrants.

· All of the wrongful conduct alleged herein occurs and continues to occur in the conduct of Defendant Bird and DOES 1 to 30, inclusive, and each of their business and Plaintiff suffered and continues to suffer substantial and potentially irreparable harm due to the Defendant Bird and DOES 1 to 30, inclusive, and each of their severe and perpetual violations of law.

· Plaintiff has sustained economic damages, attorney’s fees and costs, in amounts to be determined at trial.

For pleading purposes, the Court thus concludes the fourth cause of action fails to allege facts sufficient to constitute a cause of action for unfair business practices under Business and Professions Code section 17200. In particular, the Court finds that Plaintiff has not asserted an “economic injury” as required.

Therefore, the Court overrules in part Bird’s demurrer to Plaintiff’s first through third causes of action, and sustains in part Bird’s demurrer to the fourth cause of action with leave to amend. The Court orders Plaintiff to file and serve an amended complaint in conformance with the Court’s ruling on or before April 13, 2023.

Bird shall provide notice of the Court’s ruling and file a proof of service of such.

[1] The Court highlights Plaintiff’s allegations related to “Defendant Homeowner” to illustrate in part why the Court finds Plaintiff’s fourth cause of action cannot survive close scrutiny.

DEPARTMENT	32
HEARING DATE	March 23, 2023
CASE NUMBER	21STCV30927
MOTION	Demurrer to Complaint
MOVING PARTY	Defendant Bird Rides, Inc.
OPPOSING PARTY	Plaintiff Corina Hernandez