Judge Elaine W. Mandel, Case 22STCV31765 2023-05-02 Tentative Ruling

Judge: Elaine W. Mandel, Case: 22STCV31765, Date: 2023-05-02 Tentative Ruling

Case Number: 22STCV31765 Hearing Date: May 2, 2023 Dept: P

Tentative Ruling

Stone et al. v. Singh et al., Case No. 22STCV31765

Hearing Date May 2, 2023

Defendants’ Demurrer to and Motion to Strike Portions of Complaint

Plaintiffs Stone and Esquivel were involved in a car collision with defendant Singh, an Uber driver. Plaintiffs, who suffered serious injuries, allege Singh was speeding and had a history of traffic citations, car accidents and reckless driving. Plaintiff alleges the Uber defendants had a partnership with Avis, a subsidiary of defendant PV Holding, under which Avis rented vehicles to approved Uber drivers, including Singh. Defendants demur and move to strike punitive damages and attorneys’ fees claims.

PV Holding

Demurrer- Unfair Business Practices

Defendant PV Holding demurs to the unfair competition under Cal. Bus. and Profs. Code §17200 claim. A cause of action under §17200 requires plaintiff to allege an unlawful, unfair, and/or fraudulent business practice. A claim based on an “unlawful” business practice must allege conduct barred by a separate regulation, statute, or common-law rule. Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 950. Additionally, §17200 plaintiffs must allege actual loss of money or property because of the alleged unfair business practice. Cal. Bus. & Prof. Code §17204; Kwikset Corp. v. Sup.Ct. (2011) 51 Cal.4th 310, 322.

Plaintiffs allege “by way of its partnership agreement, the Uber defendants and Defendant PV Holding Corp., by and through its subsidiary Avis, and by virtue of Uber’s policy not to insure its drivers unless the Uber App was turned on, facilitated the rental of vehicles to Uber drivers who lacked personal auto insurance[.]” PV argues the complaint does not adequately allege an unlawful business practice, does not allege economic injury or causation and is uncertain.

The claim is uncertain. Plaintiffs state PV “facilitated the rental of vehicles to Uber drivers who lacked personal auto insurance,” but it fails to state how. The complaint states PV had a partnership agreement with Uber but does not identify an element of this agreement that allegedly constitutes an unfair, fraudulent or unlawful business practice. Plaintiffs’ opposition clarifies the PV-Avis agreement lacks a mechanism for ensuring drivers are insured, so is unfair and unlawful. These alleges facts are not included in the complaint, which remains uncertain. Additionally, the complaint does not allege an economic injury caused by the alleged unfair practice. SUSTAINED with ten days leave to amend.

Motion to Strike Punitive Damages

PV Holding moves to strike plaintiffs’ request for punitive damages. The complaint does not allege any wrongdoing by PV rising to the level of fraud, malice or oppression, so the motion is proper. In opposition, plaintiffs argue PV acted with malice by intentionally failing to ensure drivers to whom it rented cars were insured. As above, this wrongdoing is not alleged in the complaint. GRANTED.

Uber

Demurrer- Negligence

Defendant Uber demurs on the grounds that plaintiffs admit Singh did not have his Uber app on at the time of the accident, so was not within the scope of his employment when he struck plaintiffs’ vehicle.

Under respondeat superior, an employer may be held vicariously liable for torts committed by an employee within the course and scope of their employment. E.g., Jeewarat v. Warner Bros. Entertainment (2009) 177 Cal.App.4th 427, 435.

The complaint alleges “[d]efendant Singh did not have his Uber app turned on” at the time of the accident. Complaint at ¶24. Uber argues this is an admission he was outside the scope of his alleged employment when the accident occurred, so there is no respondeat superior liability.

Plaintiffs’ admission is not conclusive as to whether Singh was within the scope of his employment with Uber. Uber’s argument assumes facts regarding Uber’s practices and the scope of its drivers’ duties not set forth in the complaint and not subject to judicial notice. The court cannot conclude, without considering evidence outside the complaint, that Uber drivers – or Singh specifically -- are only acting within the course and scope of their employment when the app is turned on. Whether non-use of the app proves Singh was not working for Uber at the time of the accident is a factual question, not proper on demurrer.

Even were the court to accept Uber’s respondeat superior argument, plaintiffs alleged direct negligence by Uber by hiring Singh and providing him a car despite his history of accidents and citations. Complaint ¶37. This direct negligent theory is adequately pleaded and does not require plaintiffs to allege vicarious liability. OVERRULED.

Demurrer- Unfair Competition

Plaintiffs failed to adequately plead unfair competition as to PV Holding. The same analysis applies to the claim against Uber. Uber also correctly points out that the complaint does not allege any direct or indirect business dealings between Uber and plaintiffs. Business dealings are a prerequisite for a §17200 claim brought by a consumer. Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 788. SUSTAINED with ten days leave to amend.

Motion to Strike

Attorney’s Fees

Attorney’s fees are only recoverable if there is a statutory or contractual basis for recovery. Cal. Code of Civ. Proc. §1021. The complaint does not identify a statute or contract allowing for recovery of attorney’s fees. Plaintiffs argue they are entitled to fees under the private attorney general statute, Cal. Code of Civ. Proc. §1021.5, which allows fees in an action “which has resulted in the enforcement of an important right affecting the public interest[.]” The complaint does not state attorney’s fees are sought under that statute or identify the important right that the action seeks to enforce. Plaintiffs have not adequately pleaded a basis for the recovery of attorney’s fees. GRANTED with ten days leave to amend.

Punitive Damages

Uber argues plaintiffs have not alleged fraud, malice or oppression. Generally, ordinary negligence cannot support a claim for punitive damages. Lackner v. North (2006) 135 Cal.App.4th 1188, 1210-1211. Additionally, punitive damages cannot be awarded in an action arising out of Cal. Bus. and Profs. Code §17200. People v. Jayhill Corporation (1973) 9 Cal.3d 283, 287. Malice sufficient to support punitive damages exists if a defendant acts with a “willful and conscious disregard” for the rights and safety of others. Cal. Civ. Code §3294(c)(1).

Plaintiffs allege Uber deliberately failed to screen drivers for safety and supplied defendant Singh – allegedly a reckless driver – with a vehicle. Complaint ¶37. These allegations, if proven, could support a fact-finder’s conclusion that Uber acted with a conscious disregard of the rights of others. Plaintiffs adequately alleged malice. DENIED.

Singh

Motion to Strike

Punitive Damages

The complaint alleges Singh was driving at 81 mph around a blind curve in a 25 mph zone. Complaint ¶¶25-27. This conduct, if proven, is sufficient to indicate defendant acted with a conscious disregard of plaintiffs’ rights to safety, supporting a finding of malice. DENIED.

Post-Conduct Activity

Singh moves to strike plaintiffs’ reference to his post-accident social media post, which allegedly stated “Pray for me 2^nd August, 6^th time this year, Twice this way.” Complaint ¶25. Singh argues a post after the accident is irrelevant to liability. The post suggests Singh had been in several other car accidents in 2020. This is relevant to plaintiffs’ argument that Singh was a reckless driver, and Uber acted negligently in hiring him. DENIED.