Judge: William A. Crowfoot, Case: 22STCV21209, Date: 2022-10-20 Tentative Ruling

Case Number: 22STCV21209    Hearing Date: October 20, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

On June 29, 2022, plaintiffs Xiao Yan Wu and Chuanyue Wu (collectively, “Plaintiffs”), individually and as successors-in-interest of Yin Wu (“Wu”), filed this action against defendants James Cody Skene (“Skene”), Bird Rides, Inc. (“Bird”), and the City of Los Angeles (“City”).  Plaintiffs allege that Wu was killed on May 29, 2021, while walking on the sidewalk along Lincoln Boulevard south of Marco Court.  Skene, with Doe 1, was intoxicated and riding an electric scooter owned by Bird on the sidewalk when the electric scooter collided into Wu. 

As part of their wrongful death and survival claims for negligence, Plaintiffs allege Skene and Doe 1 owed a duty of care to safely operate the electric scooter.  (Compl., ¶ 21.)  Plaintiffs also allege Bird owed a duty of care to: (1) determine whether Skene and Doe 1 were fit to operate the electric scooter before renting the scooter to them, (2) slow down and stop scooters to prevent them from being operated on the public sidewalks, (3) warn customers that the scooter was on the sidewalk and would be stopped if the rider does not get off the sidewalk, (4) train, warn, and educate their customers in the safe operation of electric scooters.  (Compl., ¶¶ 22-27.)

Plaintiffs also assert a cause of action for dangerous condition of public property against the City and allege that City created a dangerous condition for foreseeable users of the sidewalk along Lincoln Boulevard because there was no bike path and the street had potholes.  (Compl., ¶ 48.)  Plaintiffs claim City knew or should have known that scooter riders would likely choose to ride scooters on the sidewalk instead of on the street because there was no bike path and because there were potholes.  

On August 23, 2022, Bird and City each filed a demurrer to Plaintiffs’ Complaint. 

On September 26, 2022, the Court continued the hearing to allow the parties to provide supplemental briefing. 

On October 3, 2022, Bird and City each filed a supplemental brief.  On October 10, 2022, Bird and City filed a response. 

II.      LEGAL STANDARDS

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face.  (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)  “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law.  We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed.  [Citation.]”  (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].)  Allegations are to be liberally construed.  (Code Civ. Proc., § 452.)  A demurrer may be brought if insufficient facts are stated to support the cause of action asserted.  (Code Civ. Proc., § 430.10, subd. (e).) 

Leave to amend must be allowed where there is a reasonable possibility of successful amendment.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.)  The burden is on the complainant to show the Court that a pleading can be amended successfully.  (Ibid.)

III.     DISCUSSION

A.   Meet and Confer

Before filing a demurrer or motion to strike, the demurring party shall meet and confer with the party who has filed the pleading and shall file a declaration detailing their meet and confer efforts.  (Code Civ. Proc., § 430.41, subd. (a).)  

          Both City and Bird submit declarations showing that the meet and confer requirements were satisfied.  On August 15, 2022, City sent correspondence to Plaintiffs’ counsel requesting their availability and received no response.  (City Demurrer, Nojima Decl., ¶¶ 4-5.)  Bird and Plaintiffs were able to meet and confer telephonically on July 27, 2022.  (Odegaard Decl., ¶ 4.) 

B.           City’s Demurrer

First, City argues that Plaintiff’s third cause of action for dangerous condition of public property states insufficient facts to allege a dangerous condition because there is no causal connection between Skene’s riding and the alleged dangerous condition.  Second, City argues that it is immunized from Plaintiff’s claims by the design immunity under Government Code section 830.6. 

1.           Failure to State a Dangerous Condition of Public Property

City first argues that Plaintiffs fail to allege a dangerous condition of public property.  A dangerous condition of public property is defined by Government Code section 830 as follows: “‘Dangerous condition’ means a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.”  (Gov. Code, § 830, subd. (a).) 

City contends that the lack of a bike lane and the alleged existence of potholes are not “dangerous conditions” because they are not connected to Skene’s operation of the scooter on the sidewalk.  City argues that the potholes were on the street, not on the sidewalk, and therefore no defective condition of the sidewalk caused the collision which killed Wu.  City also states that it is already against California law to operate an electric motorized scooter on sidewalks.  (Veh. Code, § 21235.) 

In their opposition brief, Plaintiffs argue, and the Court agrees, that the sidewalk itself did not need to be physically defective because the street, with its potholes and lack of a bike lane, is “adjacent property” that creates a risk of injury to the public.  Plaintiffs cite to Bonanno v. Central Contra Costa Transit (2003) 30 Cal.4th 139, in which the California Supreme Court allowed a claim for a dangerous condition of public property where a person trying to cross a street to reach a bus stop was struck by a car while in the crosswalk.  The Bonnano court held that the location of the bus stop was a dangerous condition because persons were required to cross the adjacent dangerous crosswalk, even if the bus stop itself was not physically defective or deteriorated. 

Next, City argues that Skene’s criminal conduct was a superseding cause which obviates any liability on the part of the City. 

A third party's negligence does not negate the existence of a dangerous condition and “if the third party's negligence or criminal conduct is foreseeable, such third party conduct may be the very risk which makes the public property dangerous when considered in conjunction with some particular feature of the public property.”  (Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 804; see also Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 771 [“Even if it were shown to be unforeseeable that a drunk driver would collide with a person in plaintiff's position, it could be found foreseeable that a sober driver would do so, and many if not all of the measures necessary to protect against that risk would also have protected against the risk of injury from a drunk driver.”])  In Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, the California Supreme Court answered the question, “May a government entity be liable where it is alleged that a dangerous condition of public property existed and caused the injury plaintiffs suffered in an accident, but did not cause the third party conduct that led to the accident?”  (Cordova, 61 Cal.4th at p. 1104.)  The California Supreme Court held that the plaintiffs were required to show that the allegedly dangerous condition of a tree in a median caused the decedents’ fatal injuries, but not that the allegedly dangerous condition caused the third party conduct that precipitated the accident.  (Id. at p. 1106.)

In its supplemental brief, City acknowledges that it could be liable as a concurrent tortfeasor, but only if Plaintiffs successfully plead that the injury was proximately caused by the dangerous condition and that the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred.  (Supp. Brief, 3:6-10.)  City argues that Plaintiff was required to allege what steps the City should have taken to prevent the accident and state specific facts showing that Skene’s conduct was foreseeable, such as prior scooter accidents on the sidewalks in the area.  (Supp. Brief, 3:12-22.) 

At this stage in the pleadings, Plaintiffs’ Complaint is sufficient to identify the defects in public property, namely the absence of bike lanes and the presence of potholes; these defects created a substantial risk of injury to the public because it is foreseeable that scooter riders would choose to ride scooters on the sidewalk instead of in the street, even if they were not intoxicated like Skene.  (See Compl., ¶¶ 48-49.)  Thus, Plaintiffs have adequately pled that Wu’s fatal injuries were proximately caused by the condition of the street.   

Based on the foregoing, City’s demurrer on this ground is OVERRULED.

2.           Design Immunity

Next, City argues that Plaintiffs do not allege facts showing that the design immunity is not applicable. 

Government Code Section 830.6 provides that a public entity is not liable for injury caused by the plan or design of a construction or improvement to public property where the plan or design was approved in advance of the construction or improvement by the legislative body or employee exercising discretionary authority to give such approval.  To establish the affirmative defense of design immunity, a public entity must establish three elements: “(1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design.”  (Cornette v. Department of Transp. (2001) 26 Cal.4th 63, 69.)  Where a demurrer is based upon an affirmative defense, such as statutory immunity, the demurrer “will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense. [Citation.]”  (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183.) 

Here, Plaintiffs effectively allege that the streets were not well-designed because there were no bike lanes.  However, the face of the Complaint does not allege any other facts that would support a demurrer based on design immunity.  There are no allegations regarding discretionary approval or the reasonableness of the plan.  Accordingly, City’s demurrer on this ground is OVERRULED. 

C.           Bird’s Demurrer

Bird demurs to Plaintiffs’ Complaint on the grounds that: (1) Skene was a superseding cause which prevents Bird from being held liable and (2) it did not owe Wu a duty to protect Wu from Skene’s conduct. 

1.           Causation

Bird argues that Skene’s illegal operation of the scooter is a superseding cause that prevents Bird from being held liable.  This is unpersuasive.  Plaintiffs allege that Bird failed to make a reasonable effort or inquiry to determine whether Skene was fit to operate its electric scooter before renting it to him, even though Bird knew or should have known that its scooters are likely to be rented by persons unfit to operate them.  (Compl., ¶¶ 22-23.)  Plaintiffs also effectively allege that Bird was a concurrent cause of Wu’s injuries because Bird failed to train, warn, and/or educate its customers in the safe operation of the electric scooters.  (Compl., ¶ 27.)  Bird’s demurrer on this ground is OVERRULED. 

2.           Duty

Civil Code section 1714 states, in relevant part: “Everyone 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.)  The factors articulated in Rowland v. Christian (1968) 69 Cal.2d 108 (“Rowland”) serve as a method of determining whether public policy supports a departure from this statute.  The Rowland factors are “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.”  (Rowland, supra, 69 Cal.2d at p. 113.)   

Bird argues it did not owe a duty to Wu to protect him from third parties like Skene.  “[G]enerally[,] a person has no duty to control the conduct of a third person, nor to warn those endangered by such conduct, in the absence of a ‘special relationship’ either to the third person or to the victim.”  (Pamela L. v. Farmer (1980) 112 Cal.App.3d 206, 209.)  This principle, articulated in section 315 of the Restatement of Torts, is known as the “no duty to aid rule”.  (Rest., 2d Torts, sec. 315; Eric J. v. Betty M. (1999) 76 Cal.App.4th 715, 727 [“Absent a ‘special relationship,’ one cannot be held liable for mere nonfeasance, such as not protecting another from a criminal attack by a third party. [Citations.]  The basic idea is often referred to as the ‘no duty to aid rule,’ which remains a fundamental and long-standing rule of tort law”].)  The “no duty to aid rule” stems from the principle that “one has no duty to come to the aid of another” and “[a] person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.”  (Eric J., supra, 76 Cal.App.4th at p.727.) 

In Bird’s moving papers, Bird cited Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (“Brown”) in arguing that it had no duty to protect Wu because no special relationship existed with either Wu or Skene.  In Brown, the California Supreme Court held that the applicable framework for determining whether a defendant has a duty to protect a plaintiff from harm caused by a third party is a two-step inquiry.  (Id., 11 Cal.5th at p. 213.)  “First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect.  Second, if so, the court must consult the factors described in Rowland to determine whether relevant policy considerations counsel limiting that duty.”   Because Plaintiffs did not argue that a special relationship existed, the Court proceeded to analyze Bird’s next argument that there were no other circumstances giving rise to an affirmative duty to protect because Plaintiffs only alleged nonfeasance. 

In its supplemental brief, Bird insists that the Court erred in finding that it owed a legal duty to Wu because it: (1) did not conduct the required two-step inquiry under Brown, (2) incorrectly held that Bird can be liable for nonfeasance in the absence of a special relationship; and (3) incorrectly held that Bird was alleged to have committed acts of misfeasance in reliance on the Complaint’s factual allegations alleged only as to City and without analysis of how third-party conduct is a necessary component of Bird’s alleged conduct. 

Accordingly, the Court revisits Bird’s argument that there is no affirmative duty to protect.  Bird argues that Plaintiffs have only alleged nonfeasance, such as the failure to: (1) determine whether its customers were fit to operate the scooter before renting the scooter to them (Compl., ¶ 23), (2) use its technological abilities to slow down and stop the scooter to prevent it from being operated on public sidewalks (Compl., ¶ 25), (3) communicate to its customers that the scooter would be stopped if the rider continued to ride on the sidewalk (Compl., ¶ 26), train, warn, and/or education its customers in the safe operation of scooters, including not riding the scooters on public sidewalks (Compl., ¶ 27). 

Bird argues that in any rental industry, it is possible for a renter to misuse a rented vehicle and that it is an unavoidable fact that rental companies do not control the renter’s activities after the renter takes possession.  Bird also cites to Doe No. 1. v. Uber Tech., Inc. (2022) 79 Cal.App.5th 410, 424-425 (“Uber”) and contends that it is not responsible for merely creating an opportunity for Skene to ride a scooter on the sidewalk.    In Uber, the plaintiff passengers alleged that they were abducted and then sexually assaulted by assailants who lured them into their vehicles by posing as authorized drivers of a ridesharing service provider’s app, even though they were not affiliated with the provider, by obtaining decals from the provider’s website and affixing them to their vehicles.  The plaintiffs argued that the rideshare service provider failed to protect or warn them from rapists who falsely represent themselves as authorized drivers, and the provider’s “safety-focused marketing and concealment of assaults” created the risk of the assailants posing as authorized drivers.  The court of appeal held that although it was foreseeable that that criminals might use a ride-sharing service provider’s app to attack potential victims, the criminal conduct was not a “necessary component” of the provider’s business, such that the provider created the risk that ultimately harmed the plaintiffs, triggering a duty to protect.  (Id., 79 Cal.App.5th at pp. 426-429.)  The Uber court also noted that the ridesharing service provider was not alleged to have “[taken] action to stimulate the criminal conduct” and had made efforts to prevent the type of conduct that harmed the plaintiffs.  (Id. at p. 427.) 

Uber is distinguishable in several key respects.  First, the assailants in Uber were not actually drivers authorized by the rideshare company and the company had no control over the vehicles whereas, here, Skene rented a scooter from Bird and Bird allegedly retained control and had knowledge of the location of the scooter.  Second, the Uber court considered whether the rideshare company had “stimulate[d]” or otherwise encouraged the criminal conduct.  

However, the Court acknowledges that its tentative ruling overruling the demurrer improperly relied on an allegation that was not asserted against Bird, namely that Bird made its scooters available for rent on a street where scooters could not be ridden.  Without this allegation, Plaintiffs’ claims fail to identify any misfeasance by Bird that created a foreseeable risk of harm from the third person.  If such an allegation had been asserted, then the Court would proceed to the second step of the Brown inquiry and analyze the Rowland factors.  The Court notes that despite pointedly arguing that the Court failed to fully analyze the Rowland factors, nowhere in Bird’s moving and reply papers or its supplemental brief does it discuss Rowland.  Instead, Bird only referes to public policy and cites to Modisette v. Apple, Inc. (2018) 30 Cal.App.5th 136, which the Court previously found inapposite.  Nevertheless, as the Court finds that the Complaint, as currently pled, only alleges nonfeasance without a special relationship, it is unnecessary to provide an analysis of the Rowland factors at this time.

In light of the foregoing, Bird’s demurrer is SUSTAINED with 20 days’ leave to amend. 

IV.     CONCLUSION

City’s Demurrer is OVERRULED. 

Bird’s Demurrer is SUSTAINED with 20 days’ leave to amend.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.