SARA HACALA et al., Plaintiffs and Appellants, v. BIRD RIDES, INC., et al., Defendants and Respondents.
B316374
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE
Filed 4/10/23
CERTIFIED FOR PUBLICATION; Los Angeles County Super. Ct. No. 20STCV28230
Mark H. Epstein, Judge.
McGee Lerer & Associates, Rowena J. Dizon and Dean Ogrin for Plaintiffs and Appellants.
Quarles & Brady, Stacy A. Alexejun, Ankineh Zadoorian and Evan Thomsen for Defendants and Respondents.
“At the core of California tort law is a rule born of common law judgments and reaffirmed in statute: ‘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.’ ” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 224 (Brown) (conc. opn. of Cuellar, J.), quoting
In 2017, Bird Rides, Inc. (Bird) launched its electric motorized scooter rental business in the City of Los Angeles (the City) by deploying hundreds of Bird scooters onto the City‘s streets and sidewalks.2 Bird offers the
On November 23, 2019, Sara Hacala and her daughter were walking on a City sidewalk just after twilight. The sidewalk was crowded with holiday shoppers and Hacala did not see the back wheel of a Bird scooter sticking out from behind a trash can. She tripped on the scooter, fell, and sustained serious physical injuries.
Hacala, her husband, and her daughter sued Bird and the City for negligence and other related claims.3 The trial court sustained defendants’ demurrer without leave to amend, concluding neither Bird nor the City owed plaintiffs a duty of care. The court reasoned it was a “third-party user” who had negligently parked the scooter, and defendants had no “special relationship” with any party that required them to protect plaintiffs from the third party‘s alleged misconduct. Plaintiffs appeal the judgment of dismissal.
We conclude the judgment is correct as to the City, but the trial court erred when it dismissed the claims against Bird. Because plaintiffs’ claims against the City are premised on the public entity‘s discretionary authority to enforce the permit, the City is immune from liability under the Government Claims Act (
As we will explain, having deployed its dock-less scooters onto public streets, Bird‘s general duty encompasses an obligation, among other things, to use ordinary care to locate and move a Bird scooter when the
PROCEDURAL HISTORY
The operative second amended complaint asserts five causes of action for (1) negligence against Bird; (2) public nuisance against Bird; (3) statutory negligence against the City; (4) loss of consortium against defendants by Hacala‘s husband; and (5) negligent infliction of emotional distress against defendants by Hacala‘s daughter.
With respect to Bird, the complaint alleges the company “created tripping hazards when [it] deployed dock-less electric motorized scooters in the City of Los Angeles which [it] knew would likely be parked and/or placed on the sidewalk in a manner that obstructed the pedestrian right-of-way, unless [it] educated [its] users and [its] agents on the City of Los Angeles’ rules and guidelines on where to park the scooters.” Despite this foreseeable risk, the complaint alleges Bird negligently “failed to communicate with and inform and educate its users [and agents] to park scooters only in areas designated by the CITY“; “failed to locate and remove scooters that [were] parked in violation of the requirements set forth by the CITY in its Permit“; and “failed to install ‘always-on front and back lights that are visible from a distance of at least 300 feet’ on its scooters . . . as required by its Permit.” The complaint asserts this conduct was negligent and created a public nuisance.
As for the City, the complaint asserts the City is vicariously liable under the Government Claims Act for its employees’ alleged negligent failure to “monitor[] BIRD‘s compliance with the Permit and [to] use[] the CITY‘s powers to impose fees on BIRD.” The complaint alleges it was foreseeable that “scooters would likely continue to be parked improperly and in an unsafe manner on the CITY‘s public sidewalks” unless such actions were taken.
At plaintiffs’ request, the trial court took judicial notice of the “2018 City of Los Angeles Dockless On Demand Personal Mobility Conditional Permit”
- Bird‘s scooters must “not be parked within 15 [feet] of street corner pedestrian ramps (25 [feet] if there is only a single pedestrian ramp)“;
- Bird must “ensure their Vehicles are parked in the landscape/furniture zone of the sidewalk“;
- Bird must “ensure their Vehicles are not parked in a way that impedes the regular flow of travel in the public way“;
- Bird must “inform Customers on how to properly park a Vehicle“;
- Bird must “have smart technology equipment to identify that a vehicle is upright and properly parked, and GPS tracking“;
- Bird must “remedy inoperable or improperly parked vehicles within two hours” between “the hours of 7am and 10pm daily“;
- Bird must “remove electric scooters from the public right-of-way on a daily basis“;
- Bird must “have a staffed operations center in the City and a 24-hour contact person available for emergency removals“;
- Bird‘s scooters must “have always-on front and back lights that are visible from a distance of at least 300 feet under normal atmospheric conditions at night,” which “must stay illuminated for at least 90 seconds after the Vehicle has stopped“;
- Bird must maintain “insurance against claims for injuries to persons or damages to property that may arise” from its operations; and
- Bird must indemnify the City for any violation of law by Bird “or its users, or any bodily injury including death or damage to property arising out of or in connection with any use, misuse, placement or misplacement . . . of [Bird‘s] device, property or equipment by any person.”
Defendants challenged the pleading by demurrer, arguing neither Bird nor the City had “a duty to protect Hacala from the conduct of third parties” absent a “special relationship” with the “unknown user or rider of the scooter” who apparently “abandoned” it in a hazardous location. They maintained the “mere utilization” or permitting “of a dock-less scooter system
As for the public nuisance claim, Bird argued its conduct could not constitute “a per se public nuisance” because it was “expressly permitted” by the City. Additionally, Bird argued Hacala lacked standing because she could not allege a ” ‘special injury’ ” distinct from that allegedly suffered by the general public.
Plaintiffs opposed the demurrer, arguing it mischaracterized the basis for their negligence claims. Notwithstanding the absence of a special relationship, plaintiffs maintained defendants’ general duty of due care included the duty to refrain from exposing plaintiffs to an unreasonable risk of injury at the hands of third parties. They argued the Permit‘s mandates established defendants knew Bird‘s dock-less scooter operations created an unreasonable risk that third parties would abandon scooters in hazardous locations unless defendants took reasonable measures to ameliorate the foreseeable harm. And, because the Permit represented an ” ‘operational’ ” implementation of ” ‘basic policy decisions,’ ” plaintiffs argued the City‘s duty to enforce it was ” ‘ministerial’ ” and not subject to the immunities afforded under the Government Claims Act.
The trial court sustained defendants’ demurrer without leave to amend, concluding plaintiffs had alleged neither actionable “misfeasance” nor a “special relationship” giving rise to a duty to protect Hacala “against the conduct of third parties.” In the court‘s view, plaintiffs could not allege defendants “created a peril or made [Hacala‘s] situation worse,” because defendants “did not require that the scooter be placed in an area that would cause injuries.” Thus, the court reasoned plaintiffs’ claims necessarily sounded in “nonfeasance” and the general duty of care codified in
DISCUSSION
1. Standard of Review
We review a judgment of dismissal after an order sustaining a demurrer de novo, exercising our independent judgment about whether the complaint states a cause of action as a matter of law. (Los Altos El Granada Investors v. City of Capitola (2006) 139 Cal.App.4th 629, 650.) In reviewing the sufficiency of a complaint against a general demurrer, “we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).) We “assume the truth of all facts properly pleaded by the plaintiffs, as well as those that are judicially noticeable.” (Howard Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th 809, 814Krolikowski v. San Diego City Employees’ Retirement System (2018) 24 Cal.App.5th 537, 549; Carman v. Alvord (1982) 31 Cal.3d 318, 324.)
When the trial court denies leave to amend, “we also must decide whether there is a reasonable possibility that the defect can be cured by amendment.” (Koszdin v. State Comp. Ins. Fund (2010) 186 Cal.App.4th 480, 487.) “The plaintiff bears the burden of proving there is a reasonable possibility of amendment. [Citation.] . . . [¶] To satisfy that burden on appeal, a plaintiff ‘must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.’ ” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43.) The showing can be made for the first time on appeal. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 746.)
2. The City Is Immune from Liability for Its Employees’ Discretionary Enforcement Decisions
Under the Government Claims Act, the City, as a public entity, is not liable for injuries arising out of acts or omissions of its employees, except as provided by statute. (
Plaintiffs’ claims against the City are all premised on the allegation that the City, acting through its employees, “negligently and carelessly increased the risks to public safety because they did not monitor BIRD‘s compliance with the CITY‘s rules and parking standards set forth in the Permit that were designed to keep the public safe.” That alleged conduct plainly falls within the purview of the immunity afforded the City under the Government Claims Act. Under Government Code section 821, these unidentified public employees are immune from liability for injuries resulting from the employees’ alleged failure to enforce the City‘s rules and parking standards for dock-less scooters. It therefore follows that the City is likewise immune from liability for plaintiffs’ alleged injuries. (
Plaintiffs contend the City is not immune under the Government Claims Act because “the duties [the City] was required to perform by its own regulations were ministerial or ‘street-level’ acts, requiring no discretion.” (See Nunn v. State of California (1984) 35 Cal.3d 616, 622 [“The immunity afforded by Government Code sections 818.2 and 821 attaches only to discretionary functions.“].) “A ministerial duty is one that is required to be performed in a prescribed manner under the mandate of legal authority without the exercise of discretion or judgment.” (County of San Diego v. State of California (2008) 164 Cal.App.4th 580, 593.) Plaintiffs maintain their claims arise from the City‘s alleged failure to perform ministerial functions because “the Permit prescribed the specific acts available to the City . . . to ensure Bird‘s compliance with the Permit‘s rules after the Permit was issued.”
The Permit‘s express terms undermine plaintiffs’ position. “Whether an enactment creates a mandatory duty is a question of law” that we decide as a matter of ” ‘statutory interpretation.’ ” (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 499.) To establish a mandatory or ministerial duty, the enactment at issue must be “obligatory, rather than merely discretionary or permissive, in its directions to the public
The Permit‘s terms bear the distinct hallmarks of an enactment granting discretionary enforcement authority to a public entity. Under the Permit, “[t]he City reserves the right to amend, modify, or change the terms and conditions [of the dock-less scooter pilot program] at its discretion.” (Italics added.) ”At the City‘s discretion,” it is authorized to establish “additional operating zones,” including “on-street parking spaces.” “The City reserves the right to determine where Vehicle parking is prohibited or to create geo-fenced stations within certain areas where Vehicles shall be parked,” and “[t]he City reserves the right to determine certain block faces where dockless parking is prohibited.” (Italics added.)
Critically, the Permit‘s plain language directly contradicts plaintiffs’ contention that it “specif[ies] ministerial steps [for] removing the scooters and imposing fees for such removals.” On the contrary, while the Permit mandates that “Operators shall remove electric scooters from the public right-of-way on a daily basis,” it stipulates that “[a]ny Vehicle that is parked in one location for more than 5 consecutive days without moving may be removed by the City‘s Bureau of Sanitation and taken to a City facility for storage at the expense of the Operator.” (Italics added.) Consistent with this discretionary language, the Permit provides that “[i]f Vehicle parking standards are not met on a monthly basis, the City reserves the right to revoke the Program permit.” (Italics added.) Construing these terms “in a reasonable fashion and attributing to [them their] ordinary and proper meaning” (Posey v. State of California (1986) 180 Cal.App.3d 836, 850), we conclude the City had the discretion—but was not under a mandatory duty—to remove improperly parked scooters or to revoke Bird‘s permit for noncompliance. (See Bonds v. California ex rel. Cal. Highway Patrol (1982) 138 Cal.App.3d 314, 322 [“A decision to remove or not to remove a stranded vehicle, without more, is thus a discretionary action and comes within the immunity described in
The judgment correctly dismissed the City from this action.
Plaintiffs maintain they can cure their pleading against the City by asserting a new claim for injuries caused by a dangerous condition of public property under
To plead a dangerous condition existed, a complaint‘s allegations “must establish a physical deficiency in the property itself“—that is, the property must be ” ‘physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself,’ or possesses physical characteristics in its design, location, features or relationship to its surroundings that endanger users.” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347-1348 (Cerna).) While a “public entity may be liable for a dangerous condition of public property even where the immediate cause of a plaintiff‘s injury is a third party‘s negligent or illegal act,” there must be “some physical characteristic of the property [that] exposes its users to increased danger from third party negligence or criminality.” (Id. at p. 1348.) “[I]t is insufficient to show only harmful third party conduct . . . . ’ “[T]hird party conduct by itself, unrelated to the condition of the property, does not constitute a ‘dangerous condition’ for which a public entity may be held liable.” ’ ” (Ibid.)
Plaintiffs argue the operative complaint‘s allegations are sufficient to plead the dangerous condition element of their proposed claim. They emphasize the City authorized the Bureau of Sanitation to remove improperly parked scooters because it allegedly “knew that scooters were being parked improperly . . . on public property,” and they contend the City‘s alleged failure to exercise this authority under the Permit allowed the dangerous condition to persist and injure Hacala.
The foregoing allegations are insufficient to plead a dangerous condition under the governing statutes. What plaintiffs describe is at most ” ‘only
Plaintiffs contend they can satisfy the “physical defect requirement” by amending the complaint to allege the City “failed to place markings on its sidewalks” to alert the public to “where scooters should be parked.” Because members of the public allegedly “would not know where to park [Bird] scooters” unless they “were told where to park,” plaintiffs contend the City can be held liable for failing to take protective measures to prevent this foreseeable third-party conduct. We disagree.
A public entity may be liable under
Moncur is instructive. One of the plaintiffs in Moncur was severely injured when a bomb that had been placed in a coin-operated locker exploded in a Los Angeles International Airport terminal. (Moncur, supra, 68 Cal.App.3d at p. 121.) The plaintiff sought to hold the City liable under
Like the locker and airport terminal in Moncur, the City‘s sidewalks are not defective or dangerous pieces of public property simply because third parties may improperly use them in a way that could cause harm to others. As the operative complaint‘s allegations admit, the dangerous condition at issue is not a physical defect of the property, but the public‘s alleged lack of knowledge about “where to park [Bird] scooters.” The absence of sidewalk markings designating scooter parking zones did nothing to increase or contribute to the risk of harm posed by this alleged lack of knowledge, which, like the threat of terrorism at issue in Moncur, allegedly existed regardless of any physical condition of the public property. (See Moncur, supra, 68 Cal.App.3d at pp. 123-124Government Code section 835 for failing to make protective alterations to the property. (Zelig, supra, 27 Cal.4th at p. 1137; cf. Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 711-713 [where physical location and characteristics of “four-lane limited-access highway” led to ” ‘unusually high’ ” rate of cross-median accidents, state could be held liable for failing to install median barrier]; Peterson, supra, 36 Cal.3d at pp. 812, 815 [complaint sufficiently alleged dangerous condition where “thick and untrimmed foliage and trees around the parking lot and stairway permitted the assailant to perpetrate his crime“]; but see Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 808 [holding public entity could be liable for failing to erect a barrier between highway and beach to protect beachgoers from foreseeable third-party misconduct]; Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 719-720 [recognizing Swaner is limited to “its unique facts” and rejecting public entity liability where proposed protective measures did not address “the physical condition of the property,” but rather ” ‘the condition of persons on that property’ “].)
“To establish a cause of action for negligence, the plaintiff must show that the ‘defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’ ” (Brown, supra, 11 Cal.5th at p. 213.) In reviewing the dismissal of plaintiffs’ negligence claims against Bird, the primary question for our determination is whether Bird owed a duty to Hacala arising out of (1) the company‘s deployment of Bird scooters onto public streets and sidewalks and (2) Bird‘s entrustment of its scooters to individuals who rented the scooters through the Bird app.4
The determination of whether a legal duty exists is primarily a question of law. (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46 (Weirum).)
As codified in
Notwithstanding the foregoing, Bird contends this rule of general application does not apply to plaintiffs’ negligence claims because, in Bird‘s telling,
Bird‘s characterization of plaintiffs’ negligence claims is not consistent with a fair and reasonable reading of the complaint‘s
allegations. (See Blank, supra, 39 Cal.3d at p. 318.) While the complaint admits that third-party conduct played an essential role in the set of circumstances that resulted in plaintiffs’ injuries, the complaint plainly does not concede, as Bird‘s argument necessarily implies, that third-party conduct was the sole cause of the alleged harm. (Cf. Brown, supra, 11 Cal.5th at p. 214 [General duty under
The complaint alleges Bird “controlled, operated, unlocked, and rented each electric motorized scooter through a downloadable app” that allowed Bird “to monitor and locate [its] scooters and to determine if [its] scooters [were] properly parked and out of the pedestrian right-of-way.” Notwithstanding these capabilities, Bird allegedly “failed to locate and remove scooters that [were] parked in violation of the requirements set forth [in the] Permit, [including] those parked within 25 feet of a single pedestrian ramp,” like the scooter that injured Hacala. The complaint alleges Bird knew that without
Because the foregoing allegations ground plaintiffs’ negligence claims upon Bird‘s conduct (and not solely the conduct of a third party), this is not a case that requires a special relationship to find Bird had a duty to prevent injuries allegedly occasioned by Bird‘s “want of ordinary care or skill in the management of [its] property“—namely, the Bird scooter that injured Hacala. (
Cabral is instructive. In that case, a truck driver working for Ralphs Grocery Company (Ralphs) stopped his tractor-trailer rig alongside an interstate highway to have a snack. (Cabral, supra, 51 Cal.4th at p. 768.) The plaintiff‘s husband, driving his pickup truck home from work, veered suddenly off the freeway and collided at high speed with the rear of the stopped trailer, resulting in his death. A jury found both the decedent and the truck driver negligent, awarding damages to the plaintiff based on the trucker‘s comparative fault, but the Court of Appeal reversed the judgment, holding Ralphs owed no legal duty to avoid a collision between a negligent driver and the company‘s stopped truck. (Ibid.) Our Supreme Court disagreed, concluding the general duty to exercise reasonable care for the safety of others under
“On the duty question that is presented here, the factual details of the accident are not of central importance. That [the truck driver] parked 16 feet from the outermost traffic lane, rather than six feet or 26 feet; that parking for emergencies was permitted in the dirt area he chose; that [the decedent] likely left the highway because he fell asleep or because of some unknown adverse health event, rather than from distraction or even intoxication—none of these are critical to whether [the truck driver] owed [the decedent] a duty of ordinary care. These facts may have been important to the jury‘s determinations of negligence, causation and comparative fault, but on duty California law looks to the entire ‘category of negligent conduct,’ not to particular parties in a narrowly defined set of circumstances. [Citations.] To
base a duty ruling on the detailed facts of a case risks usurping the jury‘s proper function of deciding what reasonable prudence dictates under those particular circumstances.” (Id. at p. 774.)7
For our present purposes, it does not matter whether the Bird scooter that injured Hacala had been sitting behind a trash can for only a few seconds or several days, because all we recognize at this juncture is that the default duty of care under
Similarly, at this point we recognize only that Bird‘s general duty of care under
The same is true of our conclusion that Bird‘s general duty under
We emphasize plaintiffs do not pursue, and we do not endorse, a negligence per se claim here—this is not a case where the Permit supplies the necessary standard of care or where a violation of the Permit constitutes per se negligence. Bird contends it owed no duty to plaintiffs under the circumstances of this case because, in its telling, all that has been alleged is “nonfeasance” related to its failure to take action to remedy or prevent the bad acts of the unidentified third party who left Bird‘s scooter behind a trash can. Drawing on the distinction between misfeasance—where the defendant has affirmatively created a peril—and nonfeasance—where the defendant has merely failed to act to protect or rescue the plaintiff from a preexisting peril—Bird contends a defendant can be charged with misfeasance related to third-party misconduct only when “‘the third-party conduct “was a necessary component of the defendant‘s conduct at issue.“‘” While we have already discussed how Bird‘s related argument about the absence of a special relationship ignores allegations that Bird‘s conduct contributed to the risk of harm, there are other problems with this misfeasance/nonfeasance contention that warrant consideration.
To begin, our Supreme Court in Brown recently expressed disapproval of arguments employing this distinction, explaining, “Although our precedents have sometimes referred to the distinction between ‘misfeasance’ and ‘nonfeasance,’ we now understand this terminology to be imprecise and prone to misinterpretation.” (Brown, supra, 11 Cal.5th at p. 215, fn. 6; see also id. at p. 227, fn. 3 (conc. opn. of Cuéllar, J.) [“our reference today to the confused and confusing ‘misfeasance‘/‘nonfeasance’ (Cf. dis. opn. post, at p. 7, fn. 4.) Rather, the trier of fact must determine “what reasonable prudence dictates under [the] particular circumstances” and whether Bird‘s conduct satisfied or breached that standard of care. (Cabral, supra, 51 Cal.4th at p. 783; see also id. at pp. 769, 773–774.) distinction is just an acknowledgement of a now outmoded oddity“].) As our high court clarified, “[t]he proper question is not whether an actor‘s failure to exercise reasonable care entails the commission or omission of a specific act.’ [Citation.] Rather, it is ‘whether the actor‘s entire conduct created a risk of harm.‘” (Id.
Extending this logic to circumstances involving third-party conduct, our high court further clarified, “If the third party‘s misconduct is among the risks making the defendant‘s conduct negligent, then ordinarily plaintiff‘s harm will be within the defendant‘s scope of liability.‘” (Brown, supra, 11 Cal.5th at p. 219, fn. 8; see also Kesner, supra, 1 Cal.5th at p. 1149 [“Where there is a logical causal connection between the defendant‘s negligent conduct and the intervening negligence of a third party . . . we have found both a duty and liability.“].) As we have already noted (see fn. 7, ante), the risk that third parties would negligently leave Bird scooters in hazardous locations is plainly among the perils that would make it negligent for Bird to deploy its dock-less scooters onto public streets without having reasonable measures in place to ensure its customers and agents park them safely or to retrieve abandoned scooters when they pose a danger to the public. (See, e.g., Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 183–184 [defendant‘s “duty . . . to use due care in the maintenance or operation of that automobile” encompassed decision to leave large commercial truck unguarded and unlocked overnight in high crime industrial area thus increasing risk it could be harmfully misused by a third party]; see Brown, at p. 219, fn. 8 [explaining “the focus of the duty inquiry in [Palma and similar cases] is not on the defendant‘s duty to protect the victim from the conduct of a third party, but instead on the defendant‘s general duty under section 1714 to exercise due care in his or her own conduct“].)
Notwithstanding our Supreme Court‘s clarifying observations in Brown, Bird relies upon a recent decision from our colleagues in Division One to argue it can be charged with actionable “misfeasance” only if “a third party ‘parking the scooter next to the trash can, in a prohibited area’ is a necessary component” of Bird‘s conduct. (See Jane Doe No. 1 v. Uber Technologies, Inc. (2022) 79 Cal.App.5th 410, 427 (Uber).) The argument is unpersuasive.
In Uber, the plaintiffs alleged they were abducted and sexually assaulted by assailants who lured the plaintiffs into their vehicles by obtaining decals
There are substantive distinctions between this case and Uber that compel a different result. The most obvious is, here, plaintiffs were allegedly harmed by Bird‘s failure to exercise due care in the management of its property—a risk of harm created when Bird affirmatively deployed its scooters onto public streets—whereas in Uber, the plaintiffs were not harmed by Uber‘s property, but rather by third parties exploiting the mere existence of ridesharing services to accomplish their criminal acts. (See Uber, supra, 79 Cal.App.5th at pp. 427-429.) Unlike the claim in Uber, plaintiffs’ negligence claims are not premised on a “duty to protect” plaintiffs from third-party misconduct that Bird “‘stimulate[d].‘” (Id. at pp. 427–428.) On the contrary, Bird is charged with liability for its own alleged misconduct in deploying its dock-less scooters on public streets, while allegedly failing to exercise ordinary care to ensure Bird scooters do not become an unreasonable hazard to pedestrians and others who use those same public thoroughfares. We need not find third-party misconduct was a necessary component of Bird‘s business to conclude Bird owed plaintiffs and others a duty to exercise “ordinary care or skill in the management of [its] property.” (
5. Public Policy Does Not Clearly Support an Exception to the General Duty of Care for Bird‘s Alleged Conduct
Having determined the general duty of care set forth in
As with all duty questions, “the Rowland factors are evaluated at a relatively broad level of factual generality.” (Cabral, supra, 51 Cal.4th at p. 772.) Thus, with respect to foreseeability, our Supreme Court has explained the court‘s task “‘is not to decide whether a particular plaintiff‘s injury was reasonably foreseeable in light of a particular defendant‘s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue
We must also be mindful that “[t]he overall policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible.” (Cabral, supra, 51 Cal.4th at p. 781.) Thus, the policy question to be answered by balancing the Rowland factors is “whether that consideration is outweighed, for a category of negligent conduct, by laws or mores indicating approval of the conduct or by the undesirable consequences of allowing potential liability.” (Cabral, at pp. 781–782.) In conducting the prescribed balancing, “[f]oreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, but in a given case one or more of the other Rowland factors may be determinative of the duty analysis.” (Castaneda, supra, 41 Cal.4th at p. 1213; see Kesner, supra, 1 Cal.5th at p. 1145 [“The most important factor to consider in determining whether to create an exception to the general duty to exercise ordinary care articulated by section 1714 is whether the injury in question was foreseeable.“].)
Bird tacitly concedes foreseeability in this case, inviting us to “assum[e] Hacala‘s injury was foreseeable,” but saying nothing more about the consideration. Foreseeability notwithstanding, Bird argues the “extreme burdens” it would be forced to undertake (were this court to decline to immunize its conduct) clearly support an exception to the general duty of ordinary care for all companies engaged in the dock-less scooter rental business. (See Cabral, supra, 51 Cal.4th at p. 772 [the Rowland analysis asks whether “foreseeability and policy considerations justify a categorical no-duty rule” for an “entire category of cases“]; accord, Regents, supra, 4 Cal.5th at p. 629.) Bird also appears to suggest our state and local policymakers have already balanced the overall policy of preventing foreseeable harm against these burdens and, in “permitt[ing] this exact type of business,” those policymakers determined dock-less scooter companies should be immune from liability for harm caused by their want of ordinary care in the management of dock-less scooters. Thus, Bird argues that if this court were to hold Bird “owed a duty
We agree with Bird that a law or regulation enacted by our elected policymakers can be a compelling signpost in determining whether there is any state policy that would clearly justify an exception to the general duty of ordinary care; however, in this case, we find the relevant enactments all counsel strongly against recognizing such an exception for dock-less scooter companies in the management of their property. (See, e.g., Cabral, supra, 51 Cal.4th at p. 782 [reviewing state statute that “generally prohibits unnecessarily parking or stopping a vehicle ‘upon a freeway‘” to determine “whether there is any state policy, such as would clearly justify an exception to the general duty of ordinary care, promoting or protecting the activity of parking alongside freeways for nonemergency purposes,” and discerning “no such state policy“]; cf. Lindstrom v. Hertz Corp. (2000) 81 Cal.App.4th 644, 649, 652 [where statute required rental car agencies to determine only “whether a potential customer possesses a valid driver‘s license from the jurisdiction where he resides,” public policy supported exception to general duty to otherwise ensure licensed British driver was competent to drive on California highways before entrusting him with rental car].)
Bird no doubt concedes foreseeability, at least in part, because the Permit it obtained from the City implicitly recognizes the harm that could foreseeably befall the public from an improperly parked or abandoned dock-less scooter. Thus, the Permit establishes parking regulations to safeguard against this risk of harm, and directs Bird and other dock-less scooter companies to “inform Customers on how to properly park a Vehicle.”13
More to the point, and contrary to the exception that Bird advocates, the Permit plainly reflects a policy judgment by local authorities that Bird and other dock-less scooter companies must take responsibility for the management of their property, regardless of the many imaginable ways a dock-less scooter could end up in a hazardous location. The Permit requires dock-less scooter companies like Bird, among other things, to “ensure their Vehicles are not parked in a way that impedes the regular flow of travel in the public way“; to “have smart technology equipment to identify that a vehicle is upright and properly parked, and GPS tracking“; to “remedy inoperable or improperly parked vehicles within two hours” between “the hours of 7am and
With respect to the overall policy of preventing future harm and the prevalence of insurance for the risk involved (Rowland, supra, 69 Cal.2d at p. 113), we also note the Permit requires a dock-less scooter company like Bird to maintain “insurance
against claims for injuries to persons or damages to property that may arise” from its operations and to indemnify the City for any violation of law by the company “or its users, or any bodily injury including death or damage to property arising out of or in connection with any use, misuse, placement or misplacement ... of [the company‘s] device, property or equipment by any person.” In granting the Permit to Bird, local policymakers apparently made the judgment, consistent with the “overall policy of preventing future harm,” that the “costs of [Bird‘s] negligent conduct” should be borne by Bird, and thus Bird must have insurance to guarantee those costs are compensated. (Cabral, supra, 51 Cal.4th at p. 781.) Regulations of this sort plainly do not support a special immunity from the general duty to exercise ordinary care in the management of one‘s property. (Rowland, at p. 112.)
(See, e.g., Cabral, supra, 51 Cal.4th at p. 783 [“the duty at issue is not one of avoiding all nonemergency freeway stops, but the duty to use reasonable care in choosing whether, when and where to stop alongside a freeway“].) Whether Bird failed to exercise ordinary care—i.e., breached that duty—is, as our Supreme Court repeatedly emphasized in Cabral, “to be decided by the jury, not the court,” based on “the specific facts of the case.” (Id. at p. 784; see also id. at p. 774 [“To base a duty ruling on the detailed facts of a case risks usurping the jury‘s proper function of deciding what reasonable prudence dictates under those particular circumstances.“]; see also id. at p. 772 [discussing “crucial distinction between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the court to make, and a determination that the defendant did not breach the duty of ordinary care, which in a jury trial is for the jury to make“].)
Our rejection of the exemption Bird seeks does not mean that every incident of a pedestrian tripping over a Bird scooter can result in negligence liability. On the contrary, whether the duty of ordinary care has been breached depends on the particular circumstances, including those aggravating or mitigating the risk created, and those justifying Bird‘s conduct in response. Nothing that Bird has argued suggests a jury cannot be trusted to weigh these considerations under the particular facts of this case, just as juries do in deciding negligence generally. (See Cabral, supra, 51 Cal.4th at p. 783.)15
” ‘The public nuisance doctrine is aimed at the protection and redress of community interests and, at least in theory, embodies a kind of collective ideal of civil life which the courts have vindicated by equitable remedies since the beginning of the 16th century.’ [Citation.] ‘To qualify, and thus be enjoinable, the interference [with collective social interests] must be both substantial and unreasonable. . . . ” ‘. . . It is an obvious truth that each individual in a community must put up with a certain amount of annoyance, inconvenience and interference and must take a certain amount of risk in order that all may get on together.’ ” ’ ” (Birke v. Oakwood Worldwide (2009) 169 Cal.App.4th 1540, 1547 (Birke), quoting People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1103, 1105.)
In support of Hacala‘s public nuisance claim against Bird, the operative complaint alleges Bird deployed its dock-less scooters on public sidewalks and, through its negligence, allowed the scooters to be parked and to remain in locations that violated the City‘s parking standards as set forth in the Permit, thus “creating a nuisance that affects a considerable number of people by creating tripping hazards.” As a “proximate result” of Bird‘s “statutory violations and maintenance of the nuisance,” the complaint alleges Hacala “sustained physical injury” and other personal damages.
Bird contends the foregoing allegations are insufficient to allege either the existence of a public nuisance or Hacala‘s standing to maintain a private
The law is settled that ” ‘[a] statutory sanction cannot be pleaded in justification of acts which by the general rules of law constitute a nuisance, unless the acts complained of are authorized by the express terms of the statute under which the justification is made, or by the plainest and most necessary implication from the powers expressly conferred, so that it can be fairly stated that the legislature contemplated the doing of the very act which occasions the injury.’ ” (Hassell v. City and County of San Francisco (1938) 11 Cal.2d 168, 171; Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 291; Bright v. East Side Mosquito Abatement District (1959) 168 Cal.App.2d 7, 11.) The complaint alleges Bird has created a public nuisance by allowing its scooters to remain in locations that violate the Permit, thus blocking pedestrian walkways and interfering with the comfortable enjoyment of life of a considerable number of people. (See
Bird also contends Hacala lacks standing to assert a private claim for public nuisance because she has not alleged she “suffered a harm that was different in kind . . . from that suffered by the general public.” The contention ignores that Hacala alleges she suffered personal injuries due to conduct by Bird that constitutes a public nuisance.
As noted,
Quoting Venuto v. Owens-Corning Fiberglas Corp. (1971) 22 Cal.App.3d 116 at page 124, Bird argues Hacala cannot maintain an action under
The Venuto holding has been criticized, reasonably in our view, for advancing an “incorrect statement of the law” that is inconsistent with our Supreme Court‘s statements in Lind. (Birke, supra, 169 Cal.App.4th at pp. 1543, 1550 [holding aggravation of asthma and chronic allergies from breathing secondhand smoke in apartment complex‘s outdoor common area sufficient to authorize private action for public nuisance]; accord, Rest.2d Torts, § 821C, com. d, p. 96 [“When the public nuisance causes personal injury to the plaintiff . . ., the harm is normally different in kind from that suffered by other members of the public and the tort action may be maintained.“].)
Be that as it may, even if we accept that a private action requires an alleged harm that is “different in kind” as opposed to “degree,”
DISPOSITION
The judgment is reversed with respect to all claims against defendant Bird Rides, Inc. and affirmed in all other respects.
The parties shall bear their own costs.
CERTIFIED FOR PUBLICATION
EGERTON, J.
I concur:
EDMON, P. J.
LAVIN, J., Dissenting:
After two rounds of demurrers, three complaints, and more than 100 pages of appellate briefing, plaintiffs have struggled to articulate what legal duty was owed by Bird Rides, Inc. (Bird) to plaintiffs, and the nature and scope of that duty. That we examine the operative pleading de novo does not mean that plaintiffs need only tender their latest complaint and hope we can discern a cause of action. On appeal, it is their burden to show either that the demurrer was sustained erroneously or that the trial court‘s denial of leave to amend was an abuse of discretion. And although this matter comes to us after a demurrer, it was pending for more than a year before the trial court sustained the latest demurrer and dismissed the action. Thus, plaintiffs had plenty of time to develop the record to allow them to plead facts supporting a viable legal theory, and to present clear, logical, and convincing arguments supporting their theory. I also note that pleading deficiencies generally do not affect a party‘s right to conduct discovery (Budget Finance Plan v. Superior Court (1973) 34 Cal.App.3d 794, 797, 798), and this right (and corresponding obligation to respond) is particularly important to a plaintiff in need of discovery to amend its complaint (Union Mutual Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1, 12).
Even giving plaintiffs’ briefs the most generous reading, they have not, in my view, advanced coherent and consistent legal arguments explaining why the court erred in sustaining the demurrer to plaintiff Sara Hacala‘s negligence cause of action against Bird.1 By way of example, according to their
As the trial court aptly noted, “stripped to its essentials, the real complaint is that Bird‘s business model makes it easy for a user to rent the scooter and just leave it anywhere, even a place where a reasonably careful person could trip over it and get hurt. It is the business model itself, more than it is any particular action or inaction by Bird, that truly caused the injury.” The court‘s view is consistent with plaintiffs’ argument in their opposition to the demurrer: “[P]arking in the sidewalks is a necessary component of Bird‘s scooter business. There is no other place that users can rent them from.” The majority appears to agree with plaintiffs that Bird‘s business model is the problem, concluding “Bird‘s entire conduct (deploying dock-less scooters onto public
Like the majority, I agree that Bird owes a general duty of care in the management of its property. As the majority emphasizes, “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.” (
While Bird has a general duty of care in the management of its property, I don‘t agree with the majority that this duty requires Bird to retrieve scooters that had been improperly parked “for only a few seconds” or even a few minutes. From a commonsense perspective, the majority‘s view has little to recommend it. Essentially, the majority suggests that plaintiffs be able to recover for injuries on a strict liability basis rather than to be limited to claims arising from negligence. If dock-less bicycle and scooter companies could be held liable for failing to immediately retrieve illegally parked bicycles and scooters, most of them, to avoid liability, would simply go out of business.
Instead, and accepting plaintiffs’ argument that they are pursuing the negligence cause of action by relying on the permit as a stand-in for the standard of care (see Sierra-Bay Fed. Land Bank Assn. v. Superior Court (1991) 227 Cal.App.3d 318, 333), I would frame the scope of Bird‘s duty as requiring it to retrieve “inoperable or improperly parked [scooters] within two hours” on a daily basis “[b]etween the hours of 7am and 10pm daily.”3 My view is consistent with the Legislature‘s intent “to promote the use of alternative low-emission or no-emission transportation” like Bird‘s scooters. (
LAVIN, J.