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1 Anna Hsia (SBN 234179)

ZWILLGEN LAW LLP


2 235 Montgomery Street, Suite 425
San Francisco, CA 94104
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Telephone: (415) 590-2335
4 Facsimile: (415) 636-5965
anna@zwillgen.com
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Attorneys for Plaintiff
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BIRD RIDES, INC.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN DIEGO, CENTRAL DIVISION

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BIRD RIDES INC.,
12 Case No.
13 Plaintiff,

14 v. VERIFIED COMPLAINT FOR:


(1) TRESPASS TO PERSONAL
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TALON AUTO ADJUSTERS, JOHN PROPERTY;
16 HEINKEL, SCOOTER REMOVAL LLC, (2) CONVERSION;
BOARDWALK ELECTRIC RIDES PACIFIC (3) VIOLATION OF VEHICLE CODE
17 BEACH / BOARDWALK RIDES, and DAN SECTION 22658(l)(1)(E)(i);
BORELLI and DOES 1-20 (4) VIOLATION OF VEHICLE CODE
18 SECTION 22658(j)(1);
19 Defendants. (5) VIOLATION OF VEHICLE CODE
SECTION 22658(m)(1);
20 (6) INTENTIONAL INTERFERENCE
WITH PROSPECTIVE BUSINESS
21 ADVANTAGE;
22
(7) CIVIL THEFT;
(8) UNFAIR BUSINESS PRACTICES IN
23 VIOLATION OF CALIFORNIA BUS. &
PROF. CODE SECTION 17200 ET SEQ.
24

25
DEMAND FOR JURY TRIAL
26

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1
COMPLAINT
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Plaintiff Bird Rides, Inc. (“Bird”), by and through its attorneys, complains and alleges as
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follows:
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I. INTRODUCTION
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1. Defendants Talon Auto Adjusters (“Talon”), John Heinkel (“Heinkel”), Scooter
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Removal LLC (“Scooter Removal”), Boardwalk Electric Rides Pacific Beach / Boardwalk Rides
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(“Boardwalk Electric”), and Dan Borelli (“Borelli”) (collectively “Defendants”) have developed a
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cottage industry improperly impounding Bird’s scooters and then ransoming them back to Bird.
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2. Defendants lay in wait in or around San Diego’s most active tourist and beach access
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areas—including the Promenade at Pacific Beach, located at 4150 Mission Beach Boulevard (the
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“Promenade”)—for riders to disembark from their Bird scooters. Once they do, Defendants swoop in
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and take those scooters, often under the auspices that the scooters are on the property of Promenade
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or other private businesses that have asked Defendants to remove or impound those scooters under
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the California Vehicle Code.

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3. But that is not actually the case. In many instances, for example, the scooters are not

16 on Promenade property. They are on public sidewalks owned and controlled by the City of San

17 Diego, or miles away from the Promenade. And in many instances Defendants do not adhere to the

18 procedures tow truck operators are required to follow before impounding a vehicle. For example, in

19 some cases, Defendants or their agents will place Bird’s scooters in a garage near the Promenade or

20 in private vehicles before later transporting them en masse (along with similar vehicles belonging to

21 other entities) to Defendants’ impound facilities over twenty miles away from the Promenade.
22 4. Defendants’ scheme is a lucrative one on at least two levels. Talon and Scooter
23 Removal, and their principals, charge Bird fees for Bird to retrieve its own scooters. For example, in
24 November 2018, Defendant Talon convinced Bird to pay more than $40,000 for the return of
25 approximately 1,800 scooters, based on the representation that Talon lawfully impounded those
26 scooters from Promenade private property.
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5. Bird subsequently learned the extent and ongoing nature of Defendants’ scheme of
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unlawfully confiscating and impounding Bird scooters. Indeed, Defendants currently have

2
COMPLAINT
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approximately 2500 Bird scooters in their possession, for which they are demanding tens of
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thousands of dollars for their return, with that number increasing every day. The fees Defendants are
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demanding from Bird are excessive.
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6. In addition to hijacking scooters for ransom, Boardwalk Electric—a Promenade
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business that itself rents motorized scooters—and its principals (which includes at least Borelli) get
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the added benefit of reducing competition. With fewer available Bird scooters, more customers are
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likely to turn to alternative providers, such as Boardwalk Electric.
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7. Defendants’ improper impoundment scheme has caused—and continues to cause—
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Bird harm. In addition to the direct fees Defendants are demanding for the return of Bird’s scooters,
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Bird has suffered—and continues to suffer—lost business, not to mention reputational harm, from
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having fewer scooters in circulation.
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8. Through this action, Bird seeks to put a stop to Defendants’ improper impoundment
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and/or taking of Bird’s scooters, including in violation of California Vehicle Code, and to recover its

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damages caused by these improper actions.

16 II. VENUE AND JURISDICTION

17 9. Venue is proper because liability arose and Defendants’ misconduct with respect to

18 Plaintiff occurred in San Diego County, including at the real properties located at: (1) The

19 Promenade, 4150 Mission Boulevard, San Diego, California 92109; (2) Blue Sea Beach Hotel, 707

20 Pacific Beach Drive, San Diego, California 92109; and (3) Defendant Talon’s storage facilities,

21 located at 9111 Olive Drive, Spring Valley, California, 91977.


22 10. Venue is proper in the Superior Court of California, County of San Diego, Central
23 Division pursuant to Code of Civil Procedure § 395.5.
24 11. This Court has jurisdiction under Code of Civil Procedure § 410.10.
25 III. PARTIES
26 12. Plaintiff Bird Rides Inc. is, and at all relevant times has been, a dockless scooter-share
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company incorporated in Delaware and based in Santa Monica, California. Founded in September
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2017, Bird operates electric scooters in over 100 cities throughout North America, Europe, and Asia.

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COMPLAINT
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13. Defendant Talon Automotive, Inc. is, and at all relevant times has been, a California
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corporation located at 9111 Olive Drive, Spring Valley, California, 91977.
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14. Defendant John Heinkel is the President and Principal of Talon. On information and
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belief, he is also the co-owner of Scooter Removal LLC.
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15. Defendant Scooter Removal LLC is, and at all relevant times has been, a California
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corporation with its principal place of business registered with the California Secretary of State as
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1163 Thomas Avenue, San Diego, CA 92109, which is also the residential address of Defendant Dan
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Borelli. Bird is informed, believes, and therefore alleges that Scooter Removal LLC’s principal place
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of business is actually 9111 Olive Drive, Spring Valley, California, 91977. Scooter Removal LLC
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operates the website https://www.scootscoop.com/, and also offers a mobile web application of the
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same name.
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16. Defendant Boardwalk Electric Rides Pacific Beach / Boardwalk Rides is a California
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company located at 4150 Mission Blvd., Suite #143, San Diego, CA 92109. Similar to Bird,
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Boardwalk Electric offers electric scooters to customers. According to its website, such scooters can

16 be used to “Cruise the Boardwalk Effortlessly.”

17 17. Defendant Dan Borelli is co-owner of Scooter Removal LLC. His residential address

18 1164 Thomas Avenue, San Diego, California 92109 is also registered with the California Secretary of

19 State as Scooter Removal LLC’s principal place of business. On information and belief, he is also the

20 owner and operator of Boardwalk Electric Rides Pacific Beach / Boardwalk Rides.

21 18. Bird is currently unaware of the true names and capacities of defendants sued herein
22 as DOES 1 through 20, and therefore sues these defendants by using fictitious names. Bird will
23 amend this complaint to allege their true names and capacities when ascertained. Upon information
24 and belief, Bird alleges each fictitiously named defendant is responsible in some manner for the
25 occurrences herein alleged, and that Bird’s rights against such fictitiously named defendants arise
26 from such liability. Each reference in this complaint to “defendant,” “defendants” or a specifically
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named defendant refers to all defendants sued under fictitious names.
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COMPLAINT
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IV. FACTUAL BACKGROUND
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Bird’s Dockless Scooter Business
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19. Bird is a scooter rental company that makes electric scooters available for the general
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public’s use and enjoyment.
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20. Not only are Bird scooters fun to ride, they serve as a convenient and environmentally-
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friendly solution for short distance travel, reducing vehicular traffic and gridlock plaguing many
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cities.
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21. Indeed, in authorizing the use of motorized scooters in the State of California, the
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California legislature found and declared that: (1) the state “has severe traffic congestion and air
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pollution problems, particularly in its cities, and finding ways to reduce these problems is of
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paramount importance”; (2) “Motorized scooters that meet the definition of Section 407.5 produce no
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emissions and, therefore do not contribute to increased air pollution or increase traffic congestion”;
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and (3) [i]t is the intent of the Legislature in adding this article is to promote the user of alternative

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low-emission or no-emission transportation.” Cal. Veh. Code § 21220.

16 22. Bird’s scooters meet the definition of “Motorized Scooter” under Section 407.5, which

17 is any two-wheeled device that has handlebars, has a floorboard that is designed to be stood upon

18 when riding, and is powered by an electric motor.

19 23. Before riding a Bird scooter, a user must first download the Bird mobile web

20 application (the “Bird App”) and agree to Bird’s Rental Agreement. That Rental Agreement instructs

21 riders that upon conclusion of their ride, “the Vehicle must be parked at a lawful parking spot, i.e. the
22 Vehicle cannot be parked on private property or in a locked area or in any other non-public space.”
23 Riders also agree “to follow all laws pertaining to the use, riding, parking, charging, and/or operation
24 of the Vehicle, including all state and local laws and the rules and regulations pertaining to Vehicles
25 in the area where You are operating the Vehicle.” And Riders further agree “to act with courtesy and
26 respect toward others” while using Bird’s scooters.
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24. Riders are able to locate and unlock available Bird scooters using their Bird App.
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After riding the scooter to their destination, riders are required to park the vehicle in a lawful parking

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COMPLAINT
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spot, in an upright position using the kickstand. They are expressly prohibited from parking the
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vehicle on unauthorized private property, in a locked area, or in any other unapproved non-public
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space. At the end of a given day, Bird-employed “chargers” gather all Bird scooters and bring them to
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pre-determined charging stations where they are charged overnight for use the following day.
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California Vehicle Code Section 22658
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25. The primary California law governing the removal of parked or abandoned vehicles is
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California Vehicle Code Section 22658 governed by Division 11, Rules of the Road, Chapter 10
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Removal of Parked and Abandoned Vehicles, Article 1 Authority to Remove Vehicles (“Section
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22658”). Section 22658 sets forth an extensive set of rules that must be followed for tow truck
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operators to remove vehicles like Bird’s scooters. Furthermore, California Vehicle Code Section
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21255 allows local authorities to pass ordinances that regulate “the parking and operation of
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motorized scooters on pedestrian or bicycle facilities and local streets and highways, if that
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regulation is not in conflict with [the Vehicle Code].”

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26. California Vehicle Code Section 22658(a)(1) states that a private property owner may

16 only cause removal of vehicles under the following four circumstances: (1) a sign not less than 17

17 inches by 22 inches in size, with lettering not less than one inch in height, prohibiting public parking

18 and indicating that vehicles will be removed at the owner’s expense, and containing the telephone

19 number of the local traffic law enforcement agency and the name and telephone number of each

20 towing company that is a party to a written general towing authorization agreement with the owner or

21 person in lawful possession of the property, is displayed, in plain view at all entrances to the
22 property; (2) 96 hours have passed since a vehicle has been issued a notice of parking violation; (3)
23 the vehicle is inoperable; or (4) the vehicle is parked on a lot or parcel with an improved single-
24 family dwelling.
25 27. Similarly, Section 22658(b) states that when towing a vehicle, if a tow truck operator
26 knows or is able to ascertain from the property owner, person in possession of the property, or DMV
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records, the name and address of the vehicle owner, the tow truck operator “shall immediately give,
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or cause to be given, notice in writing to the registered and legal owner of the fact of removal, the

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COMPLAINT
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grounds of removal, and indicate the place to which the vehicle has been removed.” The notice must
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also include the time of the removal of the property.
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28. Section 22658(l)(1)(A) prohibits a towing company from removing a vehicle from
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private property without first obtaining written authorization from the property’s owner. Presence and
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verification is not required only if the person authorizing the tow is the property owner, or the
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owner’s agent who is not a tow operator, of a residential rental property of 15 or fewer units that does
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not have an onsite owner, owner’s agent or employee, and the tenant has verified the violation,
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requested the tow from that tenant’s assigned parking space, and provided a signed request or
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electronic mail, or has called and provides a signed request or electronic mail within 24 hours, to the
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property owner or owner’s agent, which the owner or agent shall provide to the towing company
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within 48 hours of authorizing the tow.
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29. That same sub-section of Section 26658 requires that written authorizations include all
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of the following: (i) the make, model, vehicle identification number, and license plate number of the

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removed vehicle; (ii) the name, signature, job title, residential or business address, and working

16 telephone number of the person authorizing the removal of the vehicle; (iii) the grounds for removal

17 of the vehicle; (iv) the time when the vehicle was first observed parked at the private property; and

18 (v) the time that authorization to tow the vehicle was given.

19 30. A towing company must maintain written authorizations for a period of three years

20 and shall make them available for inspection and copying within 24 hours of a request without a

21 warrant to law enforcement, the Attorney General, district attorney, or city attorney.
22 31. Section 22658(l)(1)(D) further states that a towing company shall not remove a
23 vehicle from private property described in Section 22953(a) of California’s Vehicle Code unless the
24 towing company has made a good faith inquiry to determine that the property owner complied with
25 Section 22953. Section 22953, in turn, states that an owner of private property that is held open to the
26 public, or a discernible portion thereof, for parking of vehicles at no fee, shall not tow or remove, or
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cause the towing or removal, of a vehicle within one hour of the vehicle being parked.
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COMPLAINT
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32. Moreover, Section 22658(l)(1)(E)(i) states that the only time a general authorization to
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remove a vehicle at a towing company’s discretion can be used is in the case of vehicles parked
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within 15 feet of a fire hydrant or fire lane, or in a manner which interferes with entrance to, or exit
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from, the private property.
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33. A person that violates certain of the foregoing provisions of Section 22658 is civilly
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liable to the owner of the vehicle for four times the amount of towing and storage charges.
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34. A towing company that removes a vehicle from private property under Section 22658
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must also notify the local law enforcement agency of that tow after the vehicle is removed from the
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private property and is in transit. A towing company that does not do so within 30 minutes is civilly
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liable to the vehicle’s owner for three times the amount of towing and storage charges.
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35. A vehicle removed from private property under Section 22658 must be stored at a
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facility that is located within a 10-mile radius of the property from where the vehicle is removed.
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36. Under Section 22658(j)(1), a person who charges a vehicle owner a towing, service, or

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storage charge at an excessive rate is civilly liable to the vehicle owner for four times the amount

16 charged.

17 Defendant’s Improper Impoundment Scheme

18 37. Despite the fact that Bird is authorized to operate in San Diego, Defendants have

19 undertaken a scheme to improperly impound Bird’s scooters and “ransom” them back to Bird.

20 38. Bird originally learned of scooters being taken from the Promenade in the summer of

21 2018. Defendant Talon sent Bird sporadic notices of Talon’s impoundment of groups of scooters.
22 Talon represented that these impounds were lawful, that all scooters were found and impounded from
23 Promenade private property—and not any other location—and that Talon followed proper procedures
24 for the scooters’ impoundment. Talon requested hundreds of dollars per scooter for retrieval. Relying
25 on Talon’s representations that the scooters were taken from the Promenade, and with proper
26 authorization, Bird agreed to pay Talon over $40,000 in exchange for the scooters’ release. Bird
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subsequently learned of Defendants’ actual scheme and realized it had been induced to make this
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payment under false pretenses.

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COMPLAINT
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39. Defendants’ scheme is simple but effective. Defendants, either directly, or through
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their agents, monitor the area in and around the Promenade for scooter activity. When a rider
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disembarks from a scooter, Defendants will confiscate the scooter in an inaccessible storage garage
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and then impound it at Defendant Talon’s storage facility 21 miles away in Spring Valley.
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Defendants will impound scooters even if they are located on public property owned and controlled
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by San Diego, and even if they have been left for less than one hour.
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40. Defendants will often gather multiple scooters from the Promenade area and store
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them in a locked garage or storage area in alleyways in or around the Promenade so that they cannot
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be picked up by Bird. They will then take them to Talon’s impound lot. On information and belief,
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Defendants also use employees of local businesses to confiscate scooters. For example, in one
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instance, a bellboy from a nearby hotel was observed in a back alley putting motorized scooters in a
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storage area. Defendant Borelli was later observed conversing with the bellboy, and the scooters were
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subsequently picked up and taken away by an unidentified vehicle. Defendant Borelli was also

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observed handing out business cards to two unidentified males in the Promenade boardwalk area.

16 41. Defendants’ scheme at least appears to extend beyond the Promenade. On December

17 28, 2018, Talon represented to Bird that Talon had been retained to tow all dockless scooters

18 including Bird vehicles, parked or left within the Blue Sea Beach Hotel's property boundary lines

19 located at 707 Pacific Beach Drive, San Diego, CA 92109. At the time, however, the Blue Sea Hotel

20 stated that it entered into no such agreement with Talon and, instead, agreed to work directly with

21 Bird regarding removal of any undesired Bird vehicles from the Blue Sea Beach Hotel. As such, Bird
22 has no guarantee that Defendants are not illegally confiscating Bird vehicles from the Blue Sea Beach
23 Hotel.
24 42. Based on Bird’s GPS data of scooter locations, many of the Bird scooters confiscated
25 and impounded by Defendants are not parked on private property. Rather, they are parked on public
26 property in or around the Promenade or at other locations.
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COMPLAINT
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43. Likewise, Bird’s scooters are confiscated from areas that do not have code-compliant
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prohibition of parking signs displayed in plain view at the property entrance, or where none of the
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other circumstances identified by California Vehicle Code Section 22658(a)(1) are present.
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44. As seen below, all Bird scooters are clearly marked as owned by Bird:
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45. Despite knowing that the scooters they are confiscating and impounding belong to
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Bird, Defendants do not immediately give, or cause to be given, notice to Bird or law enforcement of
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the fact of removal, the grounds for the removal, or the place to which the vehicle has been removed.
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46. Instead, Defendants send sporadic emails indicating the total number of scooters that

25 they impounded over an indeterminate period of time. Defendants do not provide additional

26 information as to the impoundments. Nor do they disclose the instances when scooters are removed

27 from the street or other public areas and placed into locked garage or storage areas at the Promenade

28 before being taken to a storage facility such as the one operated by Defendant Talon. Those emails

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COMPLAINT
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contend that all Bird scooters are eligible for redemption only up to 30 days from the date of each
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email notice, and thereafter any “unclaimed items will be sold, disposed, dismantled, or destroyed.”
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47. In addition, on information and belief (including based on Defendants refusal to
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provide Bird with the authorizations), in some instances, Defendants confiscate and impound Bird
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scooters from private property without first obtaining a written authorization containing the
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information required by Section 22658. Rather, on information and belief, Defendants are improperly
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relying on general authorizations, even where the limited circumstances under which general
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authorizations are allowed under Section 22658 are not present. Indeed, Defendant Scooter
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Removal’s website includes a link to a “Tow Authorization” form purporting to grant Scooter
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Removal the right to tow “any and all dockless bikes and/or scooters” left on the business owner’s
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property, without requiring the provision of the additional information required by Section 22658.
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That same website also brazenly includes images of Bird employees and Bird independent
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contractors serving as “chargers”, but misleadingly represents them as Scooter Removal “scoopers.”

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48. Bird has made repeated requests for the written authorizations purportedly justifying

16 the impoundment of Bird’s scooters. Bird has also requested specific serial and identification

17 numbers of impounded scooters. Talon has provided only a single general authorization from July

18 2018 that does not include vehicle-specific information.

19 49. After improperly confiscating Bird’s scooters, Defendants often impound them at the

20 towing facilities operated by Defendant Talon. Notwithstanding Section 22658’s requirement that a

21 vehicle removed from private property be stored within a 10-mile radius of the property from which
22 the vehicle was removed, Talon’s facility is more than 21-miles from the Promenade.
23 50. After improperly confiscating and impounding Bird’s scooters, Defendants charge
24 Bird a fee for their return. For example, Bird made one payment of more than forty-thousand dollars
25 to Defendant Talon in November 2018 to retrieve approximately 1800 scooters Talon impounded.
26 Bird’s agreement to pay this amount was based on Talon’s misrepresentations regarding the
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circumstances of impoundment of the scooters.
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COMPLAINT
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51. Since that payment, Defendants have confiscated an additional approximately 2500
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additional scooters that they are refusing to release to Bird unless Bird pays additional amounts to
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Defendants. This is the case even if Bird believes such scooters were improperly impounded by
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Defendants. Bird has demanded the return of Bird vehicles in Defendants’ possession on multiple
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occasions, but Defendants refuse to return Bird’s scooters unless Bird pays excessive impound and
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storage fees.
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52. The 2500 scooters Defendants currently have impounded are not available for use by
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Bird and its customers.
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53. Defendants’ scheme is ongoing. Defendants continue to impound Bird’s scooters
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every day, often claiming that such impoundments occurred at the Promenade, even when Bird GPS
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data shows otherwise, and without providing Bird with the proper notices or authorizations regarding
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the impoundments.
13

14 First Cause of Action Against All Defendants Other Than Boardwalk Electric
(Trespass to Personal Property)
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54. Plaintiff re-alleges each and every paragraph of this Complaint, as though stated
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herein.
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55. Bird’s scooters are tangible property that belong to Bird.
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56. Defendants named in this cause of action, by improperly confiscating and impounding
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Bird’s scooters, including in violation of Section 22658, are dispossessing Bird of its property and
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interfering with Bird’s use of its property, including by improperly moving the scooters and blocking
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Bird’s lawful access to them.
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57. Defendants named in this cause of action are intentionally confiscating and
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impounding Bird’s scooters.

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58. Defendants’ improper confiscation and impoundment of Bird’s scooters is causing

26 harm to Bird. Defendants are currently holding, and demanding payment for the return of,

27 approximately 2500 Bird scooters. Each day these scooters are in Defendants’ possession, they are

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COMPLAINT
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out of circulation and not available for use by Bird or its customers, resulting in lost revenue and
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reputational harm to Bird.
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59. In addition, based on past experience, it is likely that many of those 2500 scooters will
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be damaged beyond repair, and need to be replaced by Bird.
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60. Bird does not consent, and has not consented, to Defendants’ improper confiscation
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and impoundment of Bird’s scooters, or to Defendants taking possession of those scooters or
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interfering with Bird’s use of them.
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Second Cause of Action Against All Defendants Other Than Boardwalk Electric
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(Conversion)
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61. Plaintiff re-alleges each and every paragraph of this Complaint, as though stated
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herein.
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62. Bird’s scooters are tangible personal property that belong to Bird and that Bird has and
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had a property right to, including at the time that Defendants named in this cause of action
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improperly impounded and confiscated them.
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63. Defendants named in this cause of action, by improperly confiscating and impounding
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Bird’s scooters, are wrongfully exercising dominion over Bird’s property.
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64. Specifically, by improperly confiscating and impounding Bird’s scooters, Defendants
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are interfering, and have interfered, with Bird’s property right to its scooters, including Bird’s
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ownership and right to possession of such scooters, and its right to offer such scooters to Bird’s
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customers for use. Bird was and is entitled to possession of the improperly confiscated and
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impounded scooters.
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65. Defendants named in this cause of action are intentionally confiscating and
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impounding Bird’s scooters.

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66. Defendants’ improper confiscation and impoundment of Bird’s scooters is causing

26 harm to Bird. Defendants are currently holding, and demanding payment for the return of,

27 approximately 2500 Bird scooters. Each day these scooters are in Defendants’ possession, they are

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COMPLAINT
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out of circulation and not available for use by Bird or its customers, resulting in lost revenue and
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reputational harm to Bird.
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67. In addition, based on past experience, it is likely that many of those 2500 scooters will
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be damaged beyond repair, and need to be replaced by Bird.
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68. Bird has at no time consented to Defendants’ improper confiscation and impoundment
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of Bird’s scooters, or to Defendants taking possession of those scooters or interfering with Bird’s use
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of them.
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Third Cause of Action Against All Defendants Other Than Boardwalk Electric
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(Violation of California Vehicle Code Section 22658(l)(1)(E)(i))
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69. Plaintiff re-alleges each and every paragraph of this Complaint, as though stated
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herein.
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70. Section 22658(l)(1)(E)(i) of the California Vehicle Code states that “[g]eneral
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authorization to remove or commence removal of a vehicle at the towing company’s discretion shall
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not be delegated to a towing company or its affiliates except in the case of a vehicle unlawfully
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parked within 15 feet of a fire hydrant or in a fire lane, or in a manner which interferes with an
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entrance to, or exit from, the private property.”
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71. Section 22658(l)(5) of the California Vehicle Code states that a person that violates
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Section 22658(l) is civilly liable to the owner of the vehicle or his or her agency for four times the
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amount of towing or storage charges.
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72. Defendants named in this cause of action utilized a general authorization to remove or
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commence removal of Bird scooters notwithstanding that such scooters were not unlawfully parked
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within 15 feet of a fire hydrant or fire lane, or in a manner that interferes with an entrance to, or exit
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from, private property.

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73. Defendant Scooter Removal LLC’s website includes a link to such general

26 authorization purportedly authorizing Scooter Removal LLC to tow “any and all dockless bikes

27 and/or scooters” left on the business owner’s property.

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COMPLAINT
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74. The scooters towed by Defendants named in this cause of action pursuant to such
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general authorization belonged to Bird.
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75. Defendants are currently demanding that Bird pay Defendants tens-of-thousands-of
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dollars for return of scooters impounded in violation of Section 22658(l)(1)(E)(i) of the California
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Vehicle Code.
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Fourth Cause of Action Against All Defendants Other Than Boardwalk Electric
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(Violation of California Vehicle Code Section 22658(j)(1))
8 76. Plaintiff re-alleges each and every paragraph of this Complaint, as though stated
9
herein.
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77. Section 22658(j)(1) of the California Vehicle Code states that “[a] person who charges
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a vehicle owner a towing, service, or storage charge at an excessive rate, as described in subdivision
12
(h) or (i) is civilly liable to the vehicle owner for four times the amount charged.”
13
78. Section 22658(i)(1)(A) states that a charge for towing or storage is excessive if the
14
charge exceeds the greater of (i) that which would have been charged for that towing or storage made
15
at the request of a law enforcement agency under an agreement between a towing company and the
16
law enforcement agency that exercises primary jurisdiction in the city in which the vehicle was
17
removed; or (ii) that which would have been charged for the towing or storage, under the rate
18
approved for that towing operator, by the Department of the California Highway Patrol for the
19
jurisdiction in which the vehicle was removed.
20
79. Here, Defendants named in this cause of action charged Bird excessive rates for the
21
towing or storage of Bird scooters. Specifically, because Defendants named in this cause of action
22
improperly confiscated and impounded Bird’s scooters where such confiscation and impoundment
23

24
was not authorized under Section 22658, any and all fees charged to Bird for towing or storage of

25
such Bird scooters are excessive.

26 80. Moreover, tens-of-thousands of dollars Defendants are charging Bird for the scooters’

27 return is excessive given the nature of Bird’s scooters.

28

15
COMPLAINT
1 Firth Cause of Action Against All Defendants Other Than Boardwalk Electric
(Violation of California Vehicle Code Section 22658(m)(1)
2
81. Plaintiff re-alleges each and every paragraph of this Complaint, as though stated
3
herein.
4
82. Section 22658(m)(1) of the Vehicle Code states “a towing company that removes a
5
vehicle from private property under this section shall notify the local law enforcement agency of that
6
tow after the vehicle is removed from the private property and is in transit.”
7
83. Section 22658(m)(3) of the Vehicle Code states, “a towing company that does not
8
provide the notification under paragraph (1) within 30 minutes after the vehicle is removed from the
9

10
private property and is in transit is civilly liable to the registered owner of the vehicle, or the person

11 who tenders the fees, for three times the amount of the towing and storage charges.”

12 84. On information and belief, Defendants named in this cause of action do not provide the

13 required notices to law enforcement after confiscation and impound of Bird scooters.

14 85. Defendants are currently demanding Bird pay Defendants tens-of-thousands-of dollars

15 for return of Bird vehicles impounded in violation of Section 22658(m)(1) of the Vehicle Code.

16 Sixth Cause of Action Against All Defendants


17 (Intentional Interference with Prospective Business Advantage)

18
86. Bird re-alleges each and every paragraph of this Complaint, as though stated herein.

19 87. Bird has economic relationships with the City of San Diego and Bird customers, which

20 relationships are producing economic benefits for all concerned.

21 88. On information and belief, Defendants know of these relationships and intend to disrupt

22 them.

23 89. Defendants are, in fact, disrupting these economic relationships by actively engaging in

24 the wrongful towing and storage of Bird vehicles, including in violation of Vehicle Code Section
25 22658, and wrongfully withholding from Bird approximately 2500 Bird scooters. As a result, Bird,
26 which depends on customer access to its scooters within the City of San Diego for its economic success,
27 has been significantly harmed as a direct and proximate result of Defendants’ conduct in an amount to
28

16
COMPLAINT
1
be proven at trial. Every day a Bird scooter is illegally impounded by Defendants, it is not in circulation
2
elsewhere in the City of San Diego, and Bird loses potential revenue from that scooter.
3
90. In committing the acts described above, Defendants are guilty of malice, oppression,
4
and/or fraud, and are acting with a conscious disregard of Bird’s rights with the intent to vex, injure or
5
annoy Bird. Defendants’ actions constitute oppression, fraud or malice under California Civil Code
6
section 3294, entitling Bird to punitive damages in an amount appropriate to punish or set an example
7
of defendants.
8

9 Seventh Cause of Action Against All Defendants Other Than Boardwalk Electric
(Civil Theft)
10
91. Bird re-alleges each and every paragraph of this Complaint, as though stated herein.
11
92. Bird owns all Bird vehicles in the County of San Diego.
12

13
93. Defendants are knowingly and intentionally taking Bird’s vehicles from various

14 properties, and Bird’s possession, custody and control without Bird’s consent. Defendants have and

15 are moving Bird vehicles to either a storage garage located on The Promenade or to Talon’s storage

16 facility. Defendants have withheld Bird vehicles for varying lengths of time since approximately July

17 1, 2018, and are continuing to wrongfully withhold Bird vehicles from Bird. Defendants have refused

18 to release any Bird vehicles to Bird without payment of impound and storage fees. It is presently

19 estimated Defendants are in possession of approximately 2500 Bird scooters, which have a reasonable
20 fair market value of well over $950.00. This conduct constitutes theft as defined by California Penal
21 Code section 484(a) and constitutes a violation of California Penal Code section 496(a), which gives
22 rise to civil liability under California Penal Code section 496(c).
23
94. As a result of Defendants’ conduct, Bird has incurred actual damages, including but not
24
limited to lost profits for every day the Bird vehicles are not in operation in the City of San Diego. Bird
25
is entitled to three times the amount of damages, costs of suit and attorneys’ fees.
26
95. In committing these thefts, Defendants are guilty of malice, oppression and/or fraud,
27
and are acting with a conscious disregard of Bird’s rights with the intent to vex, injure, or annoy Bird.
28

17
COMPLAINT
1
Defendants’ actions to constitute oppression, fraud or malice under California Civil Code section
2
3294, entitling Bird to punitive damages in an amount appropriate to punish or set an example of
3
Defendants.
4

5 Eighth Cause of Action Against All Defendants


(Unfair Business Practices in Violation of California Bus. & Prof. Code §§17200 et seq.)
6
96. Plaintiff re-alleges each and every paragraph of this Complaint, as though stated
7
herein.
8
97. California Business and Professions Code Section 17200 prohibits unfair competition
9
in the form of any unlawful, unfair, or fraudulent business act or practice. Business and Professions
10
Code § 17204 allows “any person who has suffered injury in fact and has lost money or property” to
11

12
prosecute a civil action for violation of the Unfair Competition Law.

13
98. As California’s Supreme Court has explained, California’s Legislature “established a

14 wide standard for the guidance of courts of equity in restraining all unfair business practices because

15 it felt that ‘given the creative nature of the scheming mind . . . a less inclusive standard would not be

16 adequate.’” People v. James, 122 Cal. App. 3d 25, 35 (1981), quoting Barquis v. Merchants

17 Collection Assn., 7 Cal. 3d 94, 112 (1972).

18 99. Defendants have committed, and continue to commit, unlawful, unfair, and/or

19 fraudulent business acts and practices as defined by Business and Professions Code Section 17200 by
20 deploying a scheme to improperly confiscate and impound Bird’s scooters, including in violation of
21 California Vehicle Code Section 22658, and then improperly charging Bird excessive fees for the
22 towing and storage of such scooters in order for Bird to obtain their return.
23 100. The acts, omissions, and practices alleged herein constitute unlawful business acts and
24 practices because Defendants has no lawful basis for confiscating and impounding Bird’s scooters,
25
and is performing such confiscations and impoundments in violation of Section 22658 of the
26
California Vehicle Code.
27

28

18
COMPLAINT
1
101. The acts, omissions, and practices in Defendants’ conduct are immoral, unscrupulous,
2
and offend public policy by seeking to profit from the improper confiscation and impoundment of
3
Bird’s scooters, and also by removing electric scooters from circulation and making them less
4
available to California citizens in contravention of the Legislature’s express desire to encourage use
5
of such scooters.
6
102. The acts, omissions, and practices alleged herein also constitute fraudulent business
7
acts and practices because Defendants intentionally falsely and misleadingly represent to Bird and
8
others that they are authorized to confiscate and impound Bird’s scooters under the California
9
Vehicle Code when, in fact, they are not.
10
103. As a result of their unlawful, unfair, and fraudulent acts, Defendants have reaped and
11
seek to reap unfair benefits and illegal profits at the expense of Bird. This includes through the
12
demand of improper and excessive towing and storage fees. At least Defendants Boardwalk Electric
13

14
and Borelli also benefit from reduced competition by the fact that Defendants’ improper and illegal

15
confiscation and impoundment scheme reduces the amount of competition to Boardwalk Electric.

16 104. Bird is suffering economic injury as a result of Defendants’ unlawful, unfair, and

17 fraudulent acts. This includes the lost revenues associated with the approximately 2500 scooters

18 Defendants are currently holding and refusing to return to Bird absent payment by Bird, as well as the

19 cost to repair or replace any of those scooters that Defendants have damaged, either partially or

20 beyond repair.

21 105. Plaintiff requests the relief described below.


22
PRAYER FOR RELIEF
23
WHEREFORE, Plaintiff prays for judgment against Defendants as follows:
24

25
A. That the Court declare that Defendants violated California Vehicle Code Section

26 22658(l)(1)(E)(i));

27 B. That the Court declare that Defendants violated California Vehicle Code Section

28 22658 Section(j)(1);

19
COMPLAINT
1
C. That the Court declare that Defendants violated California Vehicle Code Section
2
22658 Section(m)(1);
3
D. That the court declare that Defendants violated California Business and Professions
4
Code § 17200, et seq.;
5
E. An order requiring Defendants to return the approximately 2500 Bird scooters they are
6
currently holding;
7
F. An order enjoining Defendants from improperly confiscating and impounding Bird’s
8
scooters;
9
G. An award of Bird’s actual damages in an amount to be proved at trial;
10
H. An award of four times the towing and storage fees Defendants charged Bird as
11
authorized by Section 22658(j)(1) of the California Vehicle Code;
12
I. An award of four times the towing and storage fees Defendants charged Bird as
13

14
authorized by Section 22658(l)(5) of the California Vehicle Code;

15
J. An award to Bird of any profits made by Defendants due to their unlawful business

16 practices as described herein pursuant to California Business and Professions Code § 17200, et seq.;

17 K. Punitive or exemplary damages;

18 L. Prejudgment and post judgment interest; and

19 M. Such other and further relief that the Court deems just and proper.

20

21
Dated: March 20, 2019 Respectfully submitted,
22
ZWILLGEN LAW LLP
23

24

25
Anna Hsia (SBN 234179)
26 Attorney for Plaintiff Bird Rides, Inc.
27

28

20
COMPLAINT

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