Judge: William A. Crowfoot, Case: 22STCV21209, Date: 2023-01-05 Tentative Ruling

Case Number: 22STCV21209    Hearing Date: January 5, 2023    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.

On November 3, 2022, Plaintiffs filed their operative First Amended Complaint (“FAC”). 

Plaintiffs allege Bird owed a duty of care to: “safely conduct their business and to manage and control their property in a manner that does not create or increase a risk of harm to pedestrians.”  (FAC, ¶ 22.)  Plaintiffs further allege that Bird created a risk of harm by “unlocking and renting its scooters on and from streets with no bike lanes and which had speed limits over 25 miles per hour, including but not limited to Lincoln Boulevard near Marco Court.”  (FAC, ¶ 23.)  Plaintiffs additionally allege that Bird “further created a risk of harm by failing to warn, educate, and/or train persons using their scooters including SKENE and DOE 1 that their scooters should not be operated on sidewalks and on streets with no bike lanes and which had speed limits over 25 miles per hour” and “rented its scooters to persons without conducting a reasonable effort and inquiry to determine their fitness to operate its electric scooter.”  (FAC, ¶¶ 24-25.)  Bird allegedly had technology with “the ability to detect, remotely slow down and stop scooters when in restricted areas”, such as sidewalks, and Plaintiffs allege Bird should have sent Skene warnings and prevented Skene from riding the scooter on the sidewalk or on Lincoln Boulevard near Marco Court by rendering the scooter inoperable.   (FAC, ¶ 26.) 

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).)  

          Bird and Plaintiffs were able to meet and confer telephonically on November 30, 2022.  (Odegaard Decl., ¶ 4.)  The meet and confer requirement is satisfied. 

B.           Bird’s Demurrer

Bird demurs to Plaintiffs’ FAC on the grounds that: (1) there was no special relationship between Bird and Skene or Bird and Wu which would establish a duty of care, (2) Plaintiffs’ have pleaded Bird’s inaction, not the required misfeasance, (3) Skene’s alleged illegal operation of the scooter was a superseding cause which prevents Bird from being held liable, (4) Plaintiffs fail to plead that Bird had knowledge of Skene’s intoxication or incompetence, and (5) Plaintiffs’ only new allegation against Bird only establishes that Bird created an opportunity for illegal conduct rather than encouraging or inducing it, which is insufficient to impose a duty of care.    

1.           Duty

As stated by the Court in its previous ruling, 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.)   

 “[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.) 

Citing to Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (“Brown”), Bird argues 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.” 

Plaintiffs do not argue that a special relationship existed, therefore, the Court proceeds to analyze whether there were any other acts of misfeasance giving rise to an affirmative duty to protect.  Bird argues that there are no additional allegations establishing misfeasance because there are no allegations that it affirmatively created a peril.  As in its demurrer to the original Complaint, Bird 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.) 

Bird argues that there are no allegations of misfeasance because it did not stimulate or encourage Skene’s illegal operation of the scooter and that it was not necessary for Skene to operate the scooter on a sidewalk.  Bird notes that Skene could have walked the scooter to a location where it was legal to operate it or cancelled his ride entirely and taken other means of transportation.  (Demurrer, 8:6-8.)  In fact, Bird states that “[t]his is exactly what happens almost every time a scooter is rented—a scooter is typically rented on a sidewalk (where it is illegal to operate except when entering and exiting roadways) and the user must then move the scooter to where it is legal to operate (i.e. the street).”  (Demurrer, 8:8-11.) 

Furthermore, even if there was any misfeasance, Bird argues that the Rowland factors do not support the imposition of a duty of care.  Bird argues that the Court should not thwart the public policy decisions of the public’s representatives and impose a duty beyond what the City of Los Angeles and the California State Legislature has already required.  Bird argues that the City of Los Angeles has already considered the potential of sidewalk riding and pedestrian collisions when imposing regulations on Bird.  Bird also argues that there is extremely low moral blame attached to its scooter rental business, and imposing a duty would create a burden to the community by eliminating a form of transportation that the public relies on, as Bird would effectively need to eliminate its operations. 

In opposition, Plaintiffs argue that they sufficiently state two theories of negligence against Bird.  The first theory is that Bird negligently allowed their scooters to be illegally operated on sidewalks and streets.  Plaintiffs perform their own analysis of the Rowland factors.  First, they argue that there are no public policy reasons warranting an exception to the general duty of care because it was foreseeable that Bird’s renters would ride on the sidewalk, Wu died as a result of the collision, and Bird’s conduct in renting the scooter is closely connected to Wu’s death.  Plaintiffs additionally argue that there is a high level of moral blame attached to Bird’s conduct because the scooters were made available for rent where riding a scooter was prohibited.  Plaintiffs contend that imposing a duty would encourage scooter businesses to make their operations safer and prevent future harm. 

Having considered the Rowland factors, the Court finds that they cut against imposing a duty of care on Bird to protect Wu from Skene’s illegal conduct.  Charging Bird with a duty of care would impose a significant burden by requiring it to create a system capable of determining whether its users are on the sidewalk for longer than necessary, or perhaps expose them to greater liability by requiring Bird to provide its riders with a predetermined route.  The closeness of the connection between providing the scooters, which is intended to increase the public’s options for public transportation, and Skene’s collision with Wu, is too attenuated.   

Plaintiffs’ second theory of liability is grounded in negligent entrustment.  Plaintiffs claim Bird negligently failed to inquire about whether Skene was fit to operate a scooter, including whether he was intoxicated.  (FAC, ¶ 35.)  Plaintiffs do not allege that Bird had actual knowledge that Skene was intoxicated, but argues that Bird had a duty of reasonable inquiry.  Plaintiffs cite to McKenna v. Beesley (2021) 67 Cal.App.5th 552, 574 for the proposition that the failure to inquire about a renter’s fitness may be used to prove a defendant’s constructive knowledge of the renter’s lack of fitness.  However, the McKenna court only concluded that “a jury may reasonably find that an owner of a vehicle had constructive knowledge that a prospective driver was incompetent or unfit to drive if there is evidence from which the jury could  reasonably find that the owner breached its [Vehicle Code] section 14604 duty to inquire as to a prospective driver's license status and allowed an unlicensed driver to drive the owner's vehicle.”  (Id. at pp. 576-577 [emphasis added].)  In fact, the McKenna court actually noted that “[i] n the absence of a statute, it has generally been held that the owner of an automobile is under no duty to persons who may be injured by its use to keep it out of the hands of a third person in the absence of facts putting the owner on notice that the third person is incompetent to handle it.”  (Id. at p. 569.) 

Here, Plaintiffs fail to allege any facts demonstrating that Bird had reason to know that Skene was unfit to use its scooters, other than the vague allegation that Defendants knew that their scooters were likely to be rented by unfit persons.  Instead, the Court finds Flores v. Enterprise Rent-A-Car Co. (2010) 188 Cal.App.4th 1055 to be instructive.  In Flores, the duty of investigation imposed on rental car companies was determined to be a matter of legislative, not judicial action.  (Flores, supra, 188 Cal.App.4th at p. 1069.)  Moreover, as Bird points out, Plaintiffs’ demand for a broader inquiry into fitness is unworkable for the entire rental industry, where examples of fitness could include physical health, a history of seizures, or intoxication, and every rental company would be required to investigate not only the renter’s sobriety, but also the renter’s medical history, driving record, and anything else possible that may have a bearing on the person’s fitness to operate the motor vehicle.  Accordingly, the Court rejects Plaintiffs’ suggestion that Bird was required to generally inquire about Skene’s fitness. 

In light of the foregoing, the Court finds that Plaintiffs have failed to allege that Bird owed a duty of care to protect Wu from Skene’s use of the electric scooter.  Because the Court finds that Plaintiffs do not sufficiently allege a duty, it need not consider whether Plaintiffs have sufficiently alleged causation. 

IV.     CONCLUSION

Accordingly, Bird’s Demurrer to the FAC 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.