Doe v. Uber Techs.

• Decision Date: 01 May 2020
• Docket Number: Case No. 19-cv-03310-JSC
• Parties: JANE DOE, Plaintiff, v. UBER TECHNOLOGIES, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of California

JANE DOE, Plaintiff, v. UBER TECHNOLOGIES, INC., et al., Defendants.

Case No. 19-cv-03310-JSC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

May 1, 2020

ORDER RE: DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT

Re: Dkt. No. 33

Jane Doe brings tort claims against Uber and its wholly owned subsidiaries Rasier, LLC and Rasier CA, LLC (collectively "Uber") after she was assaulted by a former Uber driver posing as a current Uber driver. The Court previously dismissed Plaintiff's claims with leave to amend. (Dkt. No. 29.) Uber now moves to dismiss Plaintiff's First Amended Complaint for failure to state a claim and lack of jurisdiction under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 33.) After careful consideration of the parties' briefing, the Court concludes that oral argument is unnecessary, see N.D. Cal. Civ. L.R. 7-1(b), and GRANTS IN PART and DENIES IN PART Uber's motion to dismiss. Plaintiff's tort claims based on ostensible agency are dismissed as is her common carrier negligence claim, but her negligence claim is adequately pled and the Court cannot say that it is preempted as a matter of law.

DISCUSSION

Plaintiff's First Amended Complaint ("FAC") pleads four claims for relief: (1) false imprisonment by an ostensible agent; (2) assault and battery by an ostensible agent; (3) breach of the duty of utmost care; and (4) negligence. Uber contends that these claims fail as matter of law because they are based on the same allegations that the Court already found insufficient to state a claim when it granted Uber's prior motion to dismiss. Further, Uber insists that to the extent Plaintiff has pled an ordinary negligence claim (which it disputes), the claim is barred by California law since there was no special relationship between the parties and the Court lacks jurisdiction to impose liability because it would interfere with matters within the California Public Utilities Commission jurisdiction.

A. Plaintiff's Agency Based Claims

The Court previously dismissed Plaintiff's assault, battery, and false imprisonment claim based on an ostensible agency theory because while Plaintiff had plausibly pled an ostensible agency relationship, Plaintiff had not plausibly alleged facts that supported a finding that the assailant was acting within the scope of his ostensible employment when he assaulted Plaintiff. (Dkt. No. 29.) In doing so, the Court relied upon the California Supreme Court's holding in Lisa M. v. Henry Mayo Newhall Memorial Hospital, 12 Cal. 4th 291, 296 (1995). Lisa M. held that an employee's "willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts." Id. at 296-97. For the employer to be held liable for such conduct, however, the tort must have been "engendered by" or "arise from" the employment. Id. at 298.

Plaintiff insists that scope of employment analysis does not apply to ostensible agency torts because they are based on the doctrine of estoppel. While it is true that the "[l]iability of the principal for the acts of an ostensible agent rests on the doctrine of 'estoppel,'" it does not follow that an employer could be liable for acts of an ostensible agent, but not the same acts committed by an employee or agent. Kaplan v. Coldwell Banker Residential Affiliates, Inc., 59 Cal. App. 4th 741, 747 (1997). Indeed, "[u]nder the common law doctrine of respondeat superior, a principal or employer is vicariously liable for the acts of an agent or employee committed in the course of employment." Lathrop v. HealthCare Partners Med. Grp., 114 Cal. App. 4th 1412, 1421 (2004), as modified on denial of reh'g (Feb. 11, 2004). Plaintiff does not cite to any authority which suggests otherwise.

Instead, Plaintiff cites to the statutes governing ostensible agency—California Civil Code Sections 2300, 2317, 2334. But again, there is nothing in the statutes—or the case law—which suggests that an employer's liability for acts of its ostensible agent are greater than its liability for the acts of its employee or agent. See, e.g., Cal. Civ. Code § 2334 (stating that "[a] principal is bound by acts of his agent, under a merely ostensible authority, to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof."); see also van't Rood v. Cty. of Santa Clara, 113 Cal. App. 4th 549, 573 (2003) ("A principal cannot be held [liable] when an actual agent acts beyond the scope of his actual or ostensible authority."). Indeed, under California Civil Code § 2330 "[a]n agent represents his principal for all purposes within the scope of his actual or ostensible authority, and all the rights and liabilities which would accrue to the agent from transactions within such limit, if they had been entered into on his own account, accrue to the principal." See also Persson v. Smart Inventions, Inc., 125 Cal.App.4th 1141, 1167 (2005) ("[A] private corporation is generally liable under the doctrine of respondeat superior for torts of its agents or employees committed while they are acting within the scope of their employment.").)

Nor is the Court persuaded by Plaintiff's argument that the tort here was foreseeable because it is closely related to the nature of Uber's business and it arose directly out of the opportunities created by Uber's business operations. As the court in Lisa M concluded, a "sexual tort will not be considered engendered by the employment unless its motivating emotions were fairly attributable to work-related events or conditions." Lisa M., 12 Cal.4th at 301. The allegation that complaints of sexual assaults by Uber drivers have occurred at high rates does not support a reasonable inference that any such assault arises out of the business. Id. at 301 ("The technician's decision to engage in conscious exploitation of the patient did not arise out of the performance of the examination, although the circumstances of the examination made it possible."). That is, "the assault [was] . . . the independent product of [the assailant's] aberrant decision to engage in conduct unrelated to his duties. In the pertinent sense, therefore, [the assailant's] actions were not foreseeable from the nature of the work he was employed to perform." Id. at 302-03.

So too here. Plaintiff's allegations suggest that the assailant formulated the intent toassault her after she got into the vehicle: "before Jane Doe got into his vehicle, the driver did not know that Jane Doe was at the mall, was unaware that she was about to enter his car, and had not yet formed an intent to kidnap, assault, or rape her or anyone else...[but] when he looked in his rearview mirror, he said 'wow' because he was pleased that an attractive woman had gotten into his car, alone." (Dkt. No. 30 at ¶ 61.) As in Lisa M., "[Uber], by [virtue of the ostensible agency relationship] and providing the [ubiquitous Uber decals], may have set the stage for his misconduct, but the script was entirely of his own, independent invention." Id. at 306

Accordingly, Uber's motion to dismiss Plaintiff's false imprisonment, assault, and battery claims by an ostensible agent is granted. This dismissal is without leave to amend as the Court previously granted leave to amend these claims and further leave would be futile.

B. Plaintiff's Negligence Claims

Plaintiff pleads two negligence claims: (1) negligence based on the duty to use the utmost care, and (2) negligence. Plaintiff's first negligence claim essentially repleads Plaintiff's common carrier negligence claim as it alleges that Uber violated California Civil Code § 2100 which states that common carriers owe passengers "the utmost care and diligence for safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill." The Court previously dismissed Plaintiff's common carrier negligence claim because Plaintiff had not plausibly alleged facts that supported an inference that Uber had a common carrier/passenger relationship with Plaintiff at the time of the assault which warranted a heightened duty of care. Plaintiff has not cured these pleading defects in her FAC and her opposition brief does not argue otherwise; instead, it focuses on an ordinary negligence theory of liability as well as a theory of liability based on another unspecified "special relationship." (Dkt. No. 35 at 18.¹) The Court therefore dismisses Plaintiff's third claim for relief based on a common carrier theory of liability. This dismissal is also without leave to amend as the Court previously gave Plaintiff leave to amend this claim such that further leave to amend would be futile.

Turning to Plaintiff's negligence claim, Uber insists as a threshold matter that Plaintiff hasnot pled an ordinary negligence claim because although her fourth claim for relief is entitled "negligence" it alleges that "Uber had a special relationship with Plaintiff Jane Doe in that it held itself out as offering safe rides to the public, and it accepted her ride request, agreed to provide her with safe ride to her destination" and is thus not based on an ordinary negligence duty of care. (FAC at ¶ 101.) While Plaintiff insists in her opposition brief that her claim is one for ordinary negligence, Uber counters that the Court cannot consider this argument because her FAC does not allege a breach of the duty to use "ordinary care" or "due care"—the hallmarks of an ordinary negligence claim. The Court declines to find that Plaintiff was required to use any particular magic language to plead her ordinary negligence claim. Given her argument that her fourth claim for relief for "negligence" was just that—a claim for negligence—and that the Court specifically left open the door to such a claim, the Court concludes that Plaintiff has pled an ordinary...