The opinion
Filed 4/10/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
SARA HACALA et al., B316374
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No.
v. 20STCV28230
BIRD RIDES, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark H. Epstein, Judge. Reversed in part,
affirmed in part.
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 Cuéllar, J.), quoting Civ. Code, § 1714,
subd. (a).)1 “This is the Legislature’s ‘conclusory expression[ ]’
that, as ‘legal duties are not discoverable facts of nature,’
generally speaking, ‘liability should be imposed for damage
done.’ ” (Brown, at p. 224 (conc. opn. of Cuéllar, J.).) Thus, our
high court has long recognized a general duty of ordinary care
is to be presumed and, “in the absence of [a] statutory provision
declaring an exception to the fundamental principle enunciated
by section 1714 of the Civil Code, no such exception should be
made unless clearly supported by public policy.” (Rowland v.
Christian (1968) 69 Cal.2d 108, 112 (Rowland); Brown, at p. 218.)
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 scooters for rent through
a smartphone “app” that enables Bird to control, unlock, and rent
its scooters to customers who have downloaded the app from
1 Statutory references are to the Civil Code, unless otherwise
designated.
2 We draw the facts from the allegations of the operative
second amended complaint, which we assume to be true at the
demurrer stage. (Brown, supra, 11 Cal.5th at pp. 209–210;
Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 395.)
2
Bird’s website. The app also allows Bird to monitor and locate
its scooters around the City. This feature is crucial to Bird’s
business, as the company markets and offers its scooters as a
“dock-less” system that allows customers to pick up and leave
scooters at any public location without the inconvenience of
retrieving or returning the scooters to a designated docking
location. Before Bird deployed its dock-less scooters, the City
granted the company a permit, under which Bird agreed, among
other things, to comply with standards prohibiting scooter
parking within 25 feet of a street corner with a single pedestrian
ramp, to have staff available 24 hours a day for emergency
scooter removals, to remove improperly parked scooters within
two hours between 7:00 a.m. and 10:00 p.m. daily, and to educate
its agents and customers to follow the City’s parking standards.
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
3 Hacala’s husband and daughter sued defendants for loss
of consortium and negligent infliction of emotional distress,
respectively. Hacala asserted a public nuisance claim against
Bird based on the same allegations underlying her negligence
claim against the company.
3
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
(Gov. Code, § 810 et seq.). In contrast, regardless of the permit’s
terms, Bird may be held liable for breaching its general duty
under section 1714 to use “ordinary care or skill in the
management of [its] property.” (§ 1714, subd. (a).)
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 scooter poses an unreasonable risk
of danger to others. Moreover, because it was foreseeable that
someone could be injured if Bird breached this duty, and because
Bird agreed to take measures to prevent such injuries when it
obtained the permit from the City, we cannot find that public
policy clearly supports an exception to the fundamental principle
that a company like Bird is liable for injuries proximately caused
by its want of ordinary care in the management of its property.
(See Rowland, supra, 69 Cal.2d at pp. 111–112.) Finally, because
Bird’s alleged conduct constitutes a public nuisance, and because
that alleged conduct physically injured Hacala, we conclude
Hacala is authorized to assert a private action for public nuisance
against the company. We therefore reverse the judgment
4
dismissing the claims against Bird and affirm the judgment
in all other respects.
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
5
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” (the Permit). The Permit allegedly
governs Bird’s dock-less scooter operations in the City. Among
other things, the Permit requires:
• 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”;
6
• 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
[was] not sufficient” to establish the requisite special relationship
or an actionable charge of “misfeasance,” because Hacala had not
alleged defendants “instructed or required the scooter . . . to be
parked in [a] prohibited area.” Because the loss of consortium
and negligent infliction of emotional distress claims were both
premised on defendants’ alleged negligence, defendants argued
the absence of a legal duty disposed of those claims as well.
Additionally, the City separately urged it was immune from
liability under the Government Claims Act.
7
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 section 1714 did not apply. Because the absence
8
of a legal duty was dispositive, the court sustained defendants’
demurrer to the negligence, loss of consortium, and negligent
infliction of emotional distress claims without reaching the City’s
immunity defense. The court likewise sustained Bird’s demurrer
to Hacala’s public nuisance claim, concluding Hacala could not
allege she was exposed to a harm different from the harm
allegedly suffered by the general public.
The court entered judgment dismissing the entire action.
Plaintiffs filed a timely notice of appeal.
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, 814.) “We may affirm on any basis stated
in the demurrer, regardless of the ground on which the trial court
based its ruling.” (Krolikowski 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
9
(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. (Gov. Code, § 815,
subd. (a).) Likewise, the City is not liable for injuries resulting
from its employee’s act or omission where the employee is
immune from liability. (Id., subd. (b).) As relevant here, under
Government Code section 821, a public employee is immune
from liability “for an injury caused by . . . his failure to enforce
an enactment.” (See also id., § 820.4 [“A public employee is not
liable for his act or omission, exercising due care, in the execution
or enforcement of any law.”].)
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
10
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. (Gov. Code,
§ 815.2, subd. (b); see also id., § 818.2 [“A public entity is not
liable for an injury caused by . . . failing to enforce any law.”];
id., § 818.4 [“A public entity is not liable for an injury caused
by. . . the failure or refusal to . . . deny, suspend or revoke,
any permit . . . .”]; Sutton v. Golden Gate Bridge, Highway &
Transportation Dist. (1998) 68 Cal.App.4th 1149, 1165 [public
entity immune from claims based on alleged failure to enforce
traffic laws]; Ellison v. San Buenaventura (1976) 60 Cal.App.3d
453, 459 [claims for damages resulting from issuance of permits
are not actionable].)
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.”
11
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 entity; it must require,
rather than merely authorize or permit, that a particular
action be taken or not taken.” (Id. at p. 498.) “It is not enough,
moreover, that the public entity or officer have been under an
obligation to perform a function if the function itself involves
the exercise of discretion.” (Ibid.) In determining whether
“ ‘a particular statute is intended to impose a mandatory duty,
rather than a mere obligation to perform a discretionary
function,’ ” the “enactment’s language ‘is, of course, a most
important guide.’ ” (Id. at p. 499.)
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]
12
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 Government Code section 820.2.”].)
The judgment correctly dismissed the City from this action.
3. Plaintiffs Have Not Shown They Can Amend the
Complaint to State a Claim for Dangerous Condition
of Public Property Against the City
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 Government Code section 835.
To state a claim against a public entity under the statute,
a plaintiff must plead: “(1) a dangerous condition existed on
the public property at the time of the injury; (2) the condition
13
proximately caused the injury; (3) the condition created a
reasonably foreseeable risk of the kind of injury sustained;
and (4) the public entity had actual or constructive notice
of the dangerous condition of the property in sufficient time
to have taken measures to protect against it.” (Brenner v. City
of El Cajon (2003) 113 Cal.App.4th 434, 439, citing Gov. Code,
§ 835.) Government Code section 830 defines a “[d]angerous
condition” as “a condition of property that creates a substantial
(as distinguished from a minor, trivial or insignificant) risk of
injury when such property . . . is used with due care in a manner
in which it is reasonably foreseeable that it will be used.”
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
14
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 harmful third party conduct
. . . ‘ “unrelated to the condition of the property.” ’ ” (Cerna,
supra, 161 Cal.App.4th at p. 1348.) The allegations do not
establish the existence of “some physical characteristic of the
property [that] expose[d] [Hacala] to increased danger from
third party negligence.” (Ibid., italics added; cf. Stanford v.
City of Ontario (1972) 6 Cal.3d 870, 882–883 [evidence showing
public entity had constructive notice of a “dangerous, unshored,
unsloped excavation” on public property sufficient to establish
liability under Gov. Code, § 835].)
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 Government Code
section 835 for failing to take protective measures to safeguard
the public from a dangerous condition of the property itself;
however, when the danger at issue is third-party conduct,
15
liability attaches only if the alleged physical condition of the
property “increased or intensified” the risk of misconduct. (Zelig
v. County of Los Angeles (2002) 27 Cal.4th 1112, 1137 (Zelig).)
Thus, “courts have consistently refused to characterize harmful
conduct on the part of a third party as a dangerous condition in
the absence of some concurrent contributing defect in the property
itself.” (Moncur v. City of Los Angeles (1977) 68 Cal.App.3d 118,
123 (Moncur), italics added.) In other words, “ ‘liability can
arise only when third party conduct is coupled with a defective
condition of property,’ ” such that the risk of injury was
“increased or intensified by the condition of the property.” (Zelig,
at p. 1137; Peterson v. San Francisco Community College Dist.
(1984) 36 Cal.3d 799, 813 (Peterson) [public “can reasonably
expect that the premises will be free from physical defects and
that [public] school authorities will also exercise reasonable
care to keep the campus free from conditions which increase
the risk of crime”]; Gray v. America West Airlines, Inc. (1989)
209 Cal.App.3d 76, 86 [“foreseeable third party conduct combined
with some particular feature of the public property may create
a dangerous condition of public property”].)
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 Government
Code section 835 on the theory that the locker’s location outside
the security perimeter constituted a dangerous condition that
increased the risk a terrorist would hide a bomb and foreseeably
harm the public. (Moncur, at pp. 121–122, 124.) The Moncur
court rejected the contention, observing “the airport building was
16
not itself a dangerous or defective piece of public property.”
(Id. at p. 124.) “The danger was created by the act of [a terrorist]
placing the bomb on the property,” and the locker’s location
did nothing to increase the “dogged but irrational determination
of the perpetrators” of terrorism. (Ibid.; see also Zelig, supra,
27 Cal.4th at p. 1137 [physical condition of courthouse did
not increase or intensify risk that plaintiff would be assaulted;
regardless of protective alterations that could have been made,
“the risk of injury to [victim] at the hands of her ex-husband
was at least as great outside the courthouse”].)
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. 123–124.) Absent a physical condition that “increased or
intensified” the risk of harm from third-party misconduct, the
City cannot be held liable under Government 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
17
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’ ”].)
4. Bird Owed Plaintiffs the General Duty to Use
Ordinary Care in the Management of Its 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
4 We use the term “negligence claims” to refer collectively
to Hacala’s negligence claim, her husband’s loss of consortium
claim, and her daughter’s negligent infliction of emotional
distress claim against Bird, all of which are premised on the
injury Hacala suffered due to Bird’s alleged breach of a legal duty
18
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 section 1714, the general rule governing duty
in California is that “[e]veryone is responsible . . . 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.” (Id.,
subd. (a); Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771
(Cabral); Brown, supra, 11 Cal.5th at pp. 213–214.) 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, at p. 214, italics added, quoting Cabral, at
p. 768.) “While the question whether one owes a duty to another
must be decided on a case-by-case basis, every case is governed
by the rule of general application that all persons are required
to use ordinary care to prevent others from being injured as
the result of their conduct.” (Weirum, supra, 15 Cal.3d at p. 46,
italics added, fn. omitted.) As our Supreme Court has repeatedly
emphasized, “in the absence of a statutory provision establishing
an exception to the general rule of Civil Code section 1714,
courts should create one only where ‘clearly supported by public
of care. (See LeFiell Manufacturing Co. v. Superior Court (2012)
55 Cal.4th 275, 285 [“ ‘A cause of action for loss of consortium is,
by its nature, dependent on the existence of a cause of action for
tortious injury to a spouse.’ ”]; Burgess v. Superior Court (1992)
2 Cal.4th 1064, 1073 [“bystander liability is premised upon a
defendant’s violation of a duty not to negligently cause emotional
distress to people who observe conduct which causes harm to
another”].)
19
policy.’ ”5 (Cabral, at p. 771, citing Rowland, supra, 69 Cal.2d
at p. 112.)
Notwithstanding the foregoing, Bird contends this rule
of general application does not apply to plaintiffs’ negligence
claims because, in Bird’s telling, Hacala did not suffer her alleged
injuries as a result of the company’s conduct. Instead, Bird
maintains Hacala’s injuries were caused by the conduct of an
unidentified third party who, without any urging from Bird, left a
Bird scooter behind a trash can in violation of the City’s parking
standards. Framed in this way, Bird argues plaintiffs’ claims are
governed by a different set of rules that applies when a defendant
“did not contribute to the risk that the plaintiff would suffer the
harm alleged.” (Brown, supra, 11 Cal.5th at p. 214.) When those
conditions obtain, our law recognizes “[a] defendant cannot be
held liable in negligence for harms it did not cause unless there
are special circumstances—such as a special relationship to
the parties—that give the defendant a special obligation to offer
protection or assistance.” (Id. at p. 220.) Because Bird had no
control over the third party who left Bird’s scooter in a hazardous
location, and thus no special relationship with that individual,
Bird argues it cannot be charged with a duty to protect Hacala
from that third party’s conduct. (See Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 621 (Regents)
[special relationship exists where one party is dependent and
“the other has superior control over the means of protection”].)
Bird’s characterization of plaintiffs’ negligence claims is not
consistent with a fair and reasonable reading of the complaint’s
5 We discuss the Rowland public policy considerations in the
next section of this opinion.
20
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 § 1714 applies to all cases, except
when the defendant “did not contribute to the risk that the
plaintiff would suffer the harm alleged.” (Italics added.)].) On
the contrary, a fair reading of the complaint confirms it alleges
sufficient facts that, if proven, would support a finding that
Bird’s conduct—specifically, Bird’s “management of [its]
property” (§ 1714, subd. (a))—contributed to the risk of harm
that resulted in plaintiffs’ injuries. (See Brown, at p. 215, fn. 7
[“Regardless of whether there is a basis for recognizing an
affirmative duty, the no-duty-to-protect rule will not relieve
the defendant of an otherwise applicable duty to exercise
reasonable care when, by its own conduct, the defendant has
increased the risk of harm to the plaintiff.”].)
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 proper instruction its
customers and agents were likely to leave scooters on sidewalks
21
in a manner that posed a tripping hazard to pedestrians. Despite
this knowledge and Bird’s ability to restrict access to its scooters
through the Bird app, Bird entrusted its scooters to these
individuals, but allegedly “failed to communicate with . . . and
educate [them] to park scooters only in areas designated by the
CITY.” Finally, the complaint alleges Bird “knew that unless
[its] scooter[s] had ‘always-on front and back lights’ . . . the
scooter[s] would not be visible to pedestrians at night.” But
again, despite this knowledge, Bird allegedly “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.”6
6 “When a demurrer is sustained, we determine whether the
complaint states facts sufficient to constitute a cause of action,”
and “give the complaint a reasonable interpretation, reading it
as a whole and its parts in their context.” (Blank, supra, 39
Cal.3d at p. 318, italics added.) Notwithstanding these “long-
settled rules” (ibid.), our dissenting colleague focuses instead
on “plaintiffs’ briefs” to conclude the demurrer was properly
sustained, without addressing the factual allegations of the
complaint that we have quoted above. (Dis. opn. post, at pp. 1–3.)
While we acknowledge plaintiffs’ appellate briefs will win no
awards for clarity, we are obliged to point out that the opening
brief succinctly articulates plaintiffs’ principal claim of error:
“Civil Code section 1714[,] [subdivision] (a) plainly imposes a
duty of care on every person in the management of their property.
Bird’s failure to remove the subject scooter from where it was
illegally parked next to the trash can is a breach of that duty.
The factual questions posed by the trial court as to how long the
scooter had been parked there and whether Bird had sufficient
time to remove it, are beyond the court’s proper scope in ruling
[on] the demurrer.” (Footnote omitted.) In any event, consistent
with long-settled rules governing our review when a demurrer
is sustained, we have focused on the complaint’s allegations
22
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. (§ 1714, subd. (a); see Weirum, supra, 15 Cal.3d
at p. 48 [rule that “absent a special relationship, an actor is
under no duty to control the conduct of third parties . . . has no
application if the plaintiff’s complaint, as here, is grounded upon
an affirmative act of defendant which created an undue risk
of harm”]; Kesner v. Superior Court (2016) 1 Cal.5th 1132,
1163 (Kesner) [“Although we have held that the existence of a
relationship between the plaintiff and the defendant is one basis
for finding liability premised on the conduct of a third party
[citations], we have never held that such a relationship is a
prerequisite to finding that a defendant had a duty to prevent
injuries due to its own conduct or possessory control.” (Italics
added.)].)
We emphasize that our holding today is limited to a legal
determination that Bird owed plaintiffs the general duty codified
in section 1714 to use ordinary care in the management of
its property. While the complaint necessarily makes factual
allegations about what specific conduct by Bird allegedly
breached that duty, our legal determination that Bird owed a
duty to plaintiffs under section 1714 must be made “on a more
general basis suitable to the formulation of a legal rule.” (Cabral,
and have no trouble “discern[ing] a cause of action” from them,
as discussed above. (Dis. opn. post, at p. 1.)
23
supra, 51 Cal.4th at p. 773.) We consider plaintiffs’ breach
allegations only to determine whether Bird’s general duty
broadly encompasses the category of negligent conduct alleged,
but we leave for the trier of fact to determine, based on the
evidence, whether any specific conduct constitutes a breach
of Bird’s duty to exercise ordinary care in the management of
its property and whether that breach caused plaintiffs’ alleged
injuries. (Id. at pp. 769, 774.)
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 section 1714 applied to “the operation of a motor
vehicle” and thus broadly encompassed the truck driver’s conduct
“in choosing whether, where and how to stop on the side of the
road.” (Cabral, at pp. 768, 774) In reaching that conclusion,
the court clarified that the “legal decision” that a defendant
owes a plaintiff a legal duty “is to be made on a more general
basis suitable to the formulation of a legal rule,” in contrast to
“the fact-specific question of whether or not the defendant acted
24
reasonably under the circumstances,” which is reserved for
the trier of fact. (Id. at p. 773.) Our high court explained:
“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.”7 (Id. at p. 774.)
7 Coffee v. McDonnell-Douglas Corporation (1972) 8 Cal.3d
551 (Coffee) (see dis. opn. post, at pp. 4–5) similarly recognizes,
“ ‘ “[D]uty” is a question of whether the defendant is under
any obligation for the benefit of the particular plaintiff; and
in negligence cases, the duty is always the same, to conform
25
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
section 1714 broadly encompasses Bird’s obligation to remove
or relocate its property when a Bird scooter is in a location where
it poses a risk of harm to others.8 To hold otherwise would be
to the legal standard of reasonable conduct in the light of the
apparent risk. What the defendant must do, or must not do,
is a question of the standard of conduct required to satisfy the
duty.’ ” (Coffee, at p. 559, fn. 8, italics added.) In other words,
while a defendant’s duty is always the same, what standard of
conduct is required to satisfy that duty—i.e., “what reasonable
prudence dictates under those particular circumstances”—is
a separate question to be determined by the jury in assessing
whether the defendant has breached the generally applicable
duty. (Cabral, supra, 51 Cal.4th at p. 774.)
8 We emphasize again that plaintiffs’ negligence claims
are grounded on Bird’s conduct in managing its property. Thus,
it is of no consequence that the scooter may have been left in
a hazardous location by a Bird agent, customer, or some other
third party acting negligently. As our Supreme Court recently
reaffirmed, “ ‘[i]f 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’ ”
under section 1714. (Brown, supra, 11 Cal.5th at p. 219, fn. 8;
accord, Kesner, supra, 1 Cal.5th at p. 1149.) 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 on public streets without
exercising reasonable care to locate and retrieve abandoned
scooters when they pose a danger to the public.
26
tantamount to declaring Bird bears no legal responsibility to
retrieve or remove its property, even under the most egregious
set of conceivable circumstances, such as when a scooter lies
abandoned for long stretches on a public sidewalk in an especially
dangerous and conspicuous location. (See, e.g., Cabral, supra,
51 Cal.4th at p. 768.)9 The critical point is that “[t]he duty
of reasonable care is the same under all [conceivable]
circumstances; what varies with the specific facts of the case is
whether the defendant has breached that duty.” (Id. at p. 784;
accord, Coffee, supra, 8 Cal.3d at p. 559, fn. 8.) That question “is
generally one to be decided by the jury, not the court.” (Cabral,
at p. 768.) Thus, having determined the duty of ordinary care
applies, we leave factual issues—such as how long the particular
Bird scooter sat behind a trash can before Hacala tripped over it,
whether Bird exercised ordinary care to identify and remove the
scooter within that period of time, and the comparative fault of
9 The Cabral court similarly observed that were it “to
recognize the categorical exemption from the duty of ordinary
care Ralphs seeks, no liability could be imposed even when a
driver unjustifiably stops his or her vehicle alongside the freeway
in particularly dangerous circumstances.” (Cabral, supra,
51 Cal.4th at p. 768.) Revisiting that observation later in its
opinion, our high court asked, “under what circumstances [would
Ralphs] have us recognize a duty of ordinary care in stopping
alongside a freeway, if not in these.” (Id. at p. 784.) We might
similarly ask, if Bird has no duty to retrieve a Bird scooter that
lies abandoned in a dangerous location, then who does? The
answer should be obvious. The unresolved questions, which
can only be answered by the evidence developed in this case,
are whether Bird exercised ordinary care to retrieve its scooter
before Hacala tripped over it and, if not, whether doing so would
have made any difference. (See ibid.)
27
the actors involved—for the trier of fact’s determination to be
resolved in light of the specific circumstances proven by the
evidence. (See id. at p. 769 [“The general duty of ordinary care
being applicable, it was for the jury to determine whether the
[defendant] breached that duty, whether [the plaintiff or a third
party] was also negligent, whose negligence caused the [injury],
and how to allocate comparative fault between the parties.”].)
Similarly, at this point we recognize only that Bird’s
general duty of care under section 1714 encompasses an
obligation not to entrust its scooters to individuals who Bird
knows or should know are likely to leave scooters in hazardous
locations where they will pose an unreasonable risk of harm
to others. (See Hartford Accident & Indemnity Co. v. Abdullah
(1979) 94 Cal.App.3d 81, 90–92 [general duty under § 1714
encompasses obligation to exercise ordinary care in entrusting
one’s vehicle to another]; Ghezavat v. Harris (2019) 40
Cal.App.5th 555, 559 [negligent entrustment liability “ ‘ “does
not arise out of the relationship of the parties, but from the act of
entrustment of the motor vehicle, with permission to operate the
same, to one whose incompetency, inexperience, or recklessness
is known or should have been known by the owner” ’ ”]; accord,
Rest.2d Torts, § 308.) We make no judgment at this stage about
whether Bird in fact had reason to know a particular individual
was likely to abandon the subject scooter in a dangerous location,
whether Bird exercised ordinary care (e.g., through instructions,
notices, warnings, or some other means on its app or otherwise)
to ensure the individual was competent to park the scooter in
a safe location, or whether a failure to exercise such care was
in fact a substantial factor in causing plaintiffs’ alleged injuries.
Issues of this sort, as distinct from the general legal question
28
of whether a duty exists, are for the trier of fact to determine
based on the evidence developed in this case. (See Cabral, supra,
51 Cal.4th at pp. 769, 773–774.)
The same is true of our conclusion that Bird’s general
duty under section 1714 encompasses an obligation to ensure
its scooters are sufficiently conspicuous so as not to become
unreasonable tripping hazards to pedestrians on public
sidewalks. What constitutes ordinary care under the
circumstances (e.g., employing always-on lights, reflectors,
bright colors, etc.) and whether Bird’s alleged failure to exercise
such care was a substantial factor in causing plaintiffs’ injuries
are, again, factual questions that are reserved for the trier of
fact’s determination based on the evidence.10
10 Addressing plaintiffs’ specific allegation that the subject
scooter did not have always-on lights as required under the
Permit, Bird suggests this “would not have made a difference in
the subject incident because Hacala alleges that she ‘never saw
the scooter before tripping over it.’ ” We of course understand
plaintiffs’ allegation to be that the absence of always-on lights
at night was the reason Hacala “ ‘never saw the scooter before
tripping over it.’ ” Setting that aside, whether Bird indeed
needed to install always-on lights to exercise due care in the
management of its property and whether Bird’s failure to do so
“made a difference” (i.e., was a substantial factor in causing
plaintiffs’ injury) are factual questions distinct from our legal
determination that Bird owed a duty under section 1714 to
ensure its scooters were sufficiently conspicuous so as not
to become unreasonable tripping hazards for pedestrians
on the sidewalks where Bird deployed its scooters.
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.
29
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.)
30
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. at p. 215, fn. 6, quoting Rest.3d Torts, Liability
for Physical and Emotional Harm (2012) § 37, com. c, p. 3.)
Thus, for example, “a failure to employ an automobile’s brakes
or a failure to warn about a latent danger in one’s product is not
a case of nonfeasance . . . , because in these cases the entirety of
the actor’s conduct (driving an automobile or selling a product)
created a risk of harm.” (Rest.3d Torts, supra, § 37, com. c, p. 3.)
Similarly, here, Bird’s entire conduct (deploying dock-less
scooters onto public streets) created the risk that those scooters
could become hazards for pedestrians and others unless Bird
took affirmative measures to prevent this harm.
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
31
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 from the Uber ridesharing
provider’s website and affixing the decals to their vehicles
so as to appear to be authorized Uber drivers. (Uber, supra, 79
Cal.App.5th at pp. 416–417.) In an attempt to show “misfeasance
by the Uber entities to establish a duty to protect,” the plaintiffs
argued Uber’s “safety-focused marketing and concealment of
sexual assaults,” coupled with its “deficient matching system”
and easily obtainable “Uber decals,” created the risk of the
32
assailants posing as authorized drivers. (Id. at p. 426.) The
appellate court held that although it was foreseeable criminals
might use the existence of a ridesharing business model
to attack potential victims, the alleged scheme was “ ‘not
“a necessary component” of’ the Uber business model” such
that Uber could be charged with “ ‘stimulat[ing] the criminal
conduct’ ” that ultimately harmed the plaintiffs. (Id. at p. 427.)11
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
11 The Uber court cited Sakiyama v. AMF Bowling Centers,
Inc. (2003) 110 Cal.App.4th 398 as authority for the rule that
a third party’s “crime must be a ‘necessary component’ of the
[defendant’s] actions in order for the [defendant] to be held liable,
absent a special relationship between the parties.” (Uber, supra,
79 Cal.App.5th at p. 415, quoting Sakiyama, at p. 408.) However,
the Sakiyama court made its observations in the context of
assessing the foreseeability component of the Rowland analysis—
in other words, as part of an assessment of whether an
“exception” to the general duty of care should be made for
“ ‘public policy’ ” reasons. (Cabral, supra, 51 Cal.4th at p. 771;
see Sakiyama, at p. 407 [“Before we discuss the other Rowland
factors, . . . we must dispose of appellants’ . . . contention that
satisfaction of the foreseeability element herein equates with
a duty of care.”].) Because the court “must consult the factors
described in Rowland” only after first determining “there exists
. . . an affirmative duty” (Brown, supra, 11 Cal.5th at p. 209),
we are not convinced that the rule announced in Sakiyama
is relevant to the first step of the duty inquiry. (Cf. Uber,
at p. 420 [“The first step in the Brown analysis is dispositive
in this case.”].)
33
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.”
(§ 1714, subd. (a).)
Having concluded the general duty of ordinary care
applies, we now consider whether public policy clearly justifies
a categorical exception to the default duty of ordinary care
for operators of dock-less scooter rental businesses like Bird.
(See Cabral, supra, 51 Cal.4th at pp. 771–772; Rowland, supra,
69 Cal.2d at pp. 112–113.)
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
section 1714 applies, we ask next whether a balancing of the
public policy factors identified in Rowland—most crucially, the
foreseeability of harm to the plaintiff, the extent of the burden
34
to the defendant, and the overall policy of preventing future
harm—justifies creating an exception immunizing a dock-less
scooter rental business like Bird from potential liability for
negligently managing its property. (See Rowland, supra,
69 Cal.2d at pp. 112–113; Cabral, supra, 51 Cal.4th at p. 781;
Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213 (Castaneda).)
In conducting this balancing, we are guided and bound by the
directive, reaffirmed time and again by our high court, that “in
the absence of a statutory provision establishing an exception to
the general rule of Civil Code section 1714, courts should create
one only where ‘clearly supported by public policy.’ ” (Cabral,
at p. 771, citing Rowland, at p. 112, John B. v. Superior Court
(2006) 38 Cal.4th 1177, 1191, and Merrill v. Navegar, Inc. (2001)
26 Cal.4th 465, 477.) We conclude an exception is not justified.12
12 Our dissenting colleague acknowledges that, “[l]ike
the majority, I agree that Bird owes a general duty of care in
the management of its property.” (Dis. opn. post, at p. 4.) Yet,
despite recognizing the general duty of care applies to Bird’s
conduct, the dissent does not engage in the second step of
the prescribed “two-step inquiry” by “consult[ing] the factors
described in Rowland to determine whether relevant policy
considerations counsel limiting that duty.” (Brown, supra,
11 Cal.5th at p. 209; Rowland, supra, 69 Cal.2d at p. 112;
Cabral, supra, 51 Cal.4th at p. 771; accord, Castaneda,
supra, 41 Cal.4th at p. 1213.) Accordingly, we have no clear
understanding of how the dissent reaches the apparent
conclusion that “an exception to the general rule of Civil Code
section 1714” is “ ‘clearly supported by public policy’ ” for
Bird’s alleged conduct. (Cabral, at p. 771.) This is especially
confounding given, as we discuss below, the apparent policy
judgment by state and local officials that companies like Bird,
having deployed dock-less scooters onto public streets and
35
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 is sufficiently likely
to result in the kind of harm experienced that liability may
appropriately be imposed.’ ” (Ibid.) Likewise, in applying the
other Rowland factors, we must ask “not whether they support
an exception to the general duty of reasonable care on the facts
of the particular case before us, but whether carving out an entire
category of cases from that general duty rule is justified by clear
considerations of policy.” (Cabral, at p. 772, italics added.)
As our high court explained, “[b]y making exceptions to Civil
Code section 1714’s general duty of ordinary care only when
foreseeability and policy considerations justify a categorical
no-duty rule, we preserve the 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.”
(Ibid., italics added.)
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.”
sidewalks, shall be under a duty to monitor, locate, and remove
their property when it poses a risk of harm to the public.
36
(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
37
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 of care, it would call into question the decisions of
the branches of government that directly reflect public policy.”
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
38
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 10pm
daily”; to “remove electric scooters from the public right-of-way on
a daily basis”; and to “have a staffed operations center in the City
and a 24-hour contact person available for emergency removals.”
Far from clearly supporting an exception to the general duty
of ordinary care, the Permit reflects a judgment by local
policymakers that, if companies like Bird deploy dock-less
scooters on the City’s streets and sidewalks, those companies
will be under a duty to monitor, locate, and remove their property
whenever it poses a risk of harm to the public or simply “impedes
13 State law appears similarly to recognize the foreseeable
harm to the public posed by improperly parked or abandoned
motorized scooters. Thus, Vehicle Code section 21235 mandates
that a motorized scooter operator “shall not” “[l]eave a motorized
scooter lying on its side on any sidewalk, or park a motorized
scooter on a sidewalk in any other position, so that there is not
an adequate path for pedestrian traffic.” (Id., § 21235, subd. (i).)
39
the regular flow of travel in the public way.” Critically, these
local regulations are expressly authorized by state law. (See
Veh. Code, § 21225 [“This article does not prevent a local
authority, by ordinance, from regulating the registration of
motorized scooters and the parking and operation of motorized
scooters on pedestrian or bicycle facilities and local streets and
highways, if that regulation is not in conflict with this code.”].)14
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
14 Our dissenting colleague appears to insinuate that
recognizing Bird’s conduct is subject to the general duty to
exercise ordinary care in managing its property (or declining
to recognize an exception to this duty) is somehow inconsistent
with “the Legislature’s intent ‘to promote the use of alternative
low-emission or no-emission transportation’ like Bird’s scooters.”
(Dis. opn. post, at p. 6, quoting Veh. Code, § 21220.) But, as we
have noted (see fn. 12, ante), the dissent does not engage with
any of the Rowland factors in reaching this apparent conclusion,
let alone explain how local regulations requiring motorized
scooter companies to monitor, locate, and remove their property
whenever it poses a risk of harm to the public somehow
undermines the Legislature’s goal of promoting the use of
low-emission or no-emission transportation. Indeed, given the
plainly foreseeable risk posed by improperly parked or abandoned
motorized scooters (see Veh. Code, § 21235, subd. (i)), it is
difficult to see how the dissent could reach this conclusion after
consulting the Rowland factors. (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.”].)
40
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.)
Bird’s contention that it will be forced to undertake
“extreme burdens” if we decline to immunize its conduct from
the general duty of care reflects a material misunderstanding
of what section 1714 entails. Bird suggests plaintiffs seek to
require that it “constantly monitor every scooter in the city
and respond immediately to any illegally or improperly parked
scooters so as to prevent any potential tripping hazards.” Our
dissenting colleague erects a similar strawman when he asserts
“the majority [holds] that this duty requires Bird to retrieve
scooters that had been improperly parked ‘for only a few seconds’
or even a few minutes.” (Dis. opn. post, at p. 6.) That hyperbolic
framing is not at all what plaintiffs allege, what we hold, or what
section 1714 demands. Rather, the duty we recognize here is
simply to use ordinary care in monitoring and removing a Bird
scooter when it poses an unreasonable risk of harm to others.
41
(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
15 For this reason, we are not persuaded by the trial court’s
(or our dissenting colleague’s) suggestion that recognizing a duty
under section 1714 (or declining to exempt Bird from the general
duty of care) is equivalent to imposing strict liability on the
42
6. Hacala Alleges Sufficient Facts to Assert a Private
Action for Public Nuisance to Redress Her Personal
Injuries
“ ‘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
dock-less scooter industry. In concluding remarks to its order
sustaining Bird’s demurrer, the trial court observed that “[a]t
least part of plaintiff[s’] claim (perhaps on a ‘meta’ basis) is
that the entire dock-less system of scooter rentals is inherently
dangerous and that Bird owes a duty not to engage in this
enterprise at all, or at least that if it is going to engage in this
business, it must take much stronger affirmative steps to make
sure that scooters are not ‘parked’ inappropriately.” Our
dissenting colleague similarly asserts that, from a “commonsense
perspective,” “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.” (Dis. opn. post, at
p. 6.) These comments reflect the very error our Supreme Court
warned against in Cabral. The duty codified in section 1714 is
simply one of ordinary care—not strict liability. At the pleading
stage, we have no evidence of what affirmative steps Bird has
taken, nor are we or the trial court in a position to judge whether
Bird must take “much stronger” affirmative steps to satisfy the
duty of ordinary care. “That question, as discussed earlier, is
generally one to be decided by the jury, not the court.” (Cabral,
supra, 51 Cal.4th at p. 784.)
43
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.)
Section 3479 defines a “nuisance” as “[a]nything which is
injurious to health, . . . or is indecent or offensive to the senses,
or an obstruction to the free use of property, so as to interfere
with the comfortable enjoyment of life or property.” Section
3480 defines a “public nuisance” as a nuisance “which affects
at the same time an entire community or neighborhood, or any
considerable number of persons, although the extent of the
annoyance or damage inflicted upon individuals may be unequal.”
Under section 3493, “[a] private person may maintain an action
for a public nuisance, if it is specially injurious to himself [or
herself], but not otherwise.”
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
44
standing to maintain a private action.16 With respect to the
existence of a nuisance, Bird maintains its electric scooter
operation “cannot constitute a per se public nuisance,” because
the “operation is expressly permitted in Los Angeles.” The
argument has no merit.
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 §§ 3479, 3480.) The allegation is sufficient to establish the
existence of a public nuisance. (See Phillips v. City of Pasadena
(1945) 27 Cal.2d 104, 106 (Phillips) [“Anything which unlawfully
obstructs the free passage or use in the customary manner of
a public street is a nuisance,” and a “municipality may be held
16 Bird also contends Hacala’s public nuisance claim fails
because, like her negligence claim, it requires the existence of a
legal duty. (See Melton v. Boustred (2010) 183 Cal.App.4th 521,
542.) As we have determined Bird owes Hacala a legal duty,
we reject this objection to her public nuisance claim.
45
liable for creating or maintaining a nuisance even though a
governmental activity is involved.”]; Bright, at p. 11 [“While
respondent district is authorized by statute to abate mosquitoes,
this power cannot be construed so as to permit the district to
abate mosquitoes in such a manner as to create a nuisance.”].)
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, section 3493 authorizes a “private person” to
maintain an action for a public nuisance, if the alleged nuisance
is “specially injurious to [the plaintiff], but not otherwise.” In the
usual case, “ ‘when the wrongful act is of itself a disturbance or
obstruction only to the exercise of a common and public right,’ ”
our state law has long recognized “ ‘the sole remedy is by public
prosecution,’ ” because “ ‘the act of itself does no wrong to
individuals distinct from that done to the whole community.’ ”
(Lind v. City of San Luis Obispo (1895) 109 Cal. 340, 344, italics
added.) However, “ ‘when the alleged nuisance would constitute
a private wrong by injuring property or health, or creating
personal inconvenience and annoyance, for which an action might
be maintained in favor of a person injured, it is none the less
actionable because the wrong is committed in a manner and
under circumstances which would render the guilty party liable
to indictment for a common nuisance.’ ” (Ibid.) As our Supreme
Court recognized in Lind, because an injury “ ‘to the health and
comfort of an individual[ ] is in its nature special and peculiar
and does not cause a damage which can properly be said to
46
be common or public, however numerous may be the cases of
similar damage arising from the same cause,’ ” a private person
is authorized to seek redress for his or her personal injury under
section 3493. (Lind, at pp. 344–345.)
Quoting Venuto v. Owens-Corning Fiberglass Corp. (1971)
22 Cal.App.3d 116 at page 124, Bird argues Hacala cannot
maintain an action under section 3493 unless her “ ‘damage be
different in kind, rather than in degree, from that shared by the
general public.’ ” In Venuto, the plaintiffs alleged the defendant
used its fiberglass manufacturing plant in a manner that
constituted a public nuisance in that it severely polluted the
air, thereby “injuring the health of the citizens of the county.”
(Venuto, at p. 121.) Predicating their claim of “special damage
upon personal injury,” the plaintiffs alleged the air pollution
“aggravate[d] their allergies and respiratory disorders.” (Id. at
pp. 124–125.) Inferring from the allegations that “the public is
suffering from a general irritation to the respiratory tract and
that plaintiffs are suffering a more severe irritation to such
tract,” the Venuto court reasoned “such allegations merely
indicate that plaintiffs and the members of the public are
suffering from the same kind of ailments but that plaintiffs
are suffering from them to a greater degree.” (Id. at p. 125.)
The Venuto court thus concluded the plaintiffs could not maintain
a private action for public nuisance because their alleged injury
was “not different in kind but only in degree from that shared
by the general public.” (Ibid.)
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
47
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,” we
are compelled to find the allegations sufficient here. Fairly
construing the complaint, it alleges Bird’s conduct has created
a public nuisance by obstructing public sidewalks and creating
tripping hazards that the general public must avoid. While that
alleged inconvenience is plainly sufficient to establish a public
nuisance (see Phillips, supra, 27 Cal.2d at p. 106), Hacala
allegedly suffered a different kind of injury—she tripped on
a Bird scooter and was physically injured. We conclude the
allegations are sufficient to state a private action for public
nuisance to redress this personal injury.
48
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.
49
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 opening
1In their opening brief, plaintiffs assert, without providing any legal
authority, that the claims for loss of consortium and negligent
brief, plaintiffs assert “Bird had a duty to take reasonable care to
prevent the third party from parking the scooter next to the trash
can, and in a prohibited area, which created the tripping hazard
for [plaintiff] Hacala.” Plaintiffs then argue that, as provided in
Bird’s permit with the City, the scope of Bird’s duty required it to
remove the improperly parked scooter within two hours between
7:00 a.m. and 10:00 p.m. Two pages later, however, plaintiffs
argue that “how long the scooter had been parked there and
whether Bird had sufficient time to remove it, are beyond the
court’s proper scope in ruling the [sic] demurrer” and also suggest
that the “failure to remove the subject scooter from where it was
illegally parked next to the trash can is a breach of that duty.”
And although plaintiffs conceded below that the permit issued to
Bird by the City of Los Angeles does not create a private right of
action, there is no special relationship between plaintiffs and
Bird, and that a third party’s conduct is “immaterial,” plaintiffs
now argue that the permit’s requirements “demonstrated that
tripping hazards from improper scooter parking [were]
foreseeable” and the lower court failed to analyze “the special
relationship” between Bird, the City and/or Bird’s customers
based on the permit. Of course, plaintiffs never asked the court to
infliction of emotional distress should be “reinstated because the City
[of Los Angeles] and Bird owe a duty of care to Mrs. Hacala.” And
citing Melton v. Boustred (2010) 183 Cal.App.4th 521, 542, plaintiffs
contend the public nuisance claim “stands or falls with the
determination of the negligence” claim. Because the court properly
sustained the negligence claim against Bird, I don’t address these
causes of action. I also don’t address plaintiffs’ negligence claim
against the City because I agree with the majority’s conclusion that the
City is not liable for plaintiffs’ damages.
2
analyze Bird’s purported “special relationship” with the City or
its customers. Further, although they expressly used the permit’s
requirements as a stand-in for the standard of care, on appeal
they don’t acknowledge that they never alleged, or could have
alleged, that Bird failed to remove the illegally parked scooter
within two hours as required by that permit. Given the state of
plaintiffs’ briefing, I could conclude my analysis here based upon
plaintiffs’ failure to carry their burden on appeal. Nevertheless, I
briefly address plaintiffs’ contention that the court erred in
sustaining Bird’s demurrer.
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 streets) created the risk that those scooters could
become hazards for pedestrians and others unless Bird took
affirmative measures to prevent this harm.” The majority also
contends that 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 Bird’s general duty of care
under section Civil Code section 1714 encompasses an obligation
to remove or relocate its property, requires it not to entrust
3
scooters to individuals who will illegally park them, and requires
Bird to ensure its scooters are “sufficiently conspicuous so as not
to become unreasonable tripping hazards to pedestrians on public
sidewalks.” Based on the undisputed facts pleaded by plaintiffs
and those that are judicially noticeable pursuant to their request,
as well as plaintiffs’ concessions, Bird was not in a special
relationship with plaintiffs that would give rise to a duty to
protect them from a third party improperly parking or moving
one of Bird’s scooters. Nor does the pleading or judicially
noticeable facts allege actionable misfeasance or establish that
Bird’s “entire course of conduct of directing dockless scooters to
be parked on [City] sidewalks” creates a risk of harm that is
actionable. I would therefore affirm the judgment in its entirety.
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.” (Civ. Code, § 1714, subd. (a).) But as noted by
Witkin, “Generalizations like the foregoing are obviously
inadequate and of little practical value. Much of tort law ‘is an
attempt to define what counts as a legal wrong in particular
settings.’ ” (5 Witkin, Summary of Cal. Law (11th ed. 2017) Torts,
§1, p. 104.) “ ‘[D]uty’ is a question of whether the defendant is
under any obligation for the benefit of the particular plaintiff;
and in negligence cases, the duty is always the same, to conform
to the legal standard of reasonable conduct in the light of the
apparent risk. What the defendant must do, or must not do, is a
4
question of the standard of conduct required to satisfy the duty.”
(Coffee v. McDonnell-Douglas Corp. (1972) 8 Cal.3d 551, 559, fn.
8.) To assess the scope of a duty, a court must “identify the
specific action or actions the plaintiff claims the defendant had a
duty to undertake. ‘Only after the scope of the duty under
consideration is defined may a court meaningfully undertake the
balancing analysis of the risks and burdens present in a given
case to determine whether the specific obligations should or
should not be imposed[.]’ ” (Castaneda v. Olsher (2007) 41 Cal.4th
1205, 1214.) Like the existence of a legal duty, the scope of that
duty is a question of law for the court. (Merrill v. Navegar, Inc.
(2001) 26 Cal.4th 465, 477.)2
2 The issue before us is not whether we should create an exception
based on public policy to the general duty rule enunciated in Civil Code
section 1714 under Rowland v. Christian (1968) 69 Cal.2d. 108, 112;
the issue before us is the standard of conduct required to satisfy that
duty. Further, unlike in Brown v. USA Taekwondo (2021) 11 Cal.5th
204, 209, where the issue before the Supreme Court concerned how
courts should decide whether a defendant has a legal duty to take
action to protect a plaintiff from injuries caused by a third party, the
majority and plaintiffs contend that Bird’s conduct, not that of a third
party, is the focus of this lawsuit. Further, in Brown the Supreme
Court established a two-step inquiry to determine whether a defendant
has a legal duty to take action to protect a plaintiff from injuries
caused by a third party: “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.” (Brown, at p. 209, italics added; see also Regents of
University of California v. Superior Court (2018) 4 Cal.5th 607, 627
[special relationship doctrine is an exception to the general rule that
there is no duty to protect others from the conduct of third parties].)
Here, there is no special relationship between plaintiffs and Bird or
5
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. (Veh. Code, § 21220; see also Lugtu v.
California Highway Patrol (2001) 26 Cal.4th 703, 719 [discussing
legislative or administrative pronouncements in formulating the
some other set of circumstances giving rise to an affirmative duty to
protect.
3Although Vehicle Code section 21235 prohibits or restricts certain
acts by the “operator of a motorized scooter,” plaintiffs did not rely on
this statute for the standard of care. In any event, the statute’s
prohibitions and restrictions are limited to the actual scooter user or
operator.
6
standard of care].) Indeed, other public policy considerations
justify the requirement of a more specific standard of care in this
case. Pursuant to plaintiffs’ request for judicial notice, former
City Councilmember Joe Buscaino—discussing the City’s scooter
regulations—explained that “if we’re going to address the traffic
issue in our city, we need to embrace traffic solutions and live in
a multi-modal city” by encouraging the use of zero-emission
scooters for “short-trip transportation.” Like the trial court, I am
“not prepared to state that the dock-less system of scooter rentals
is inherently dangerous such that if a scooter is stopped at a
dangerous location, Bird is essentially or virtually strictly liable.”
And here there is no allegation, even on information and belief,
that Bird failed to retrieve the improperly parked scooter within
two hours after it was parked, abandoned, or moved. Accordingly,
there is no basis for concluding that Bird caused or contributed to
Hacala’s injury.4
LAVIN, J.
4 Plaintiffs’ additional contention that Bird failed to install or provide
working safety lights on the scooter makes no sense. In their
complaint, they allege the scooter did not have “always-on” lights
visible from at least 300 feet. But the permit only requires the lights to
stay illuminated for 90 seconds after the scooter is stopped, and there
is no allegation the scooter was in use or had been parked for less than
90 seconds when Hacala tripped and was injured. Plaintiffs also did
not argue below that the permit’s standard of conduct only defined the
minimum standard. Any suggestion to the contrary on appeal is
therefore forfeited.
7