Judge Kerry Bensinger, Case Number: 23STCV09795, Date: 2023-10-03 Tentative Ruling

MOVING PARTY: Defendants Uber Technologies, Inc. Rasier, LLC, and Rasier-CA, LLC

On May 2, 2023, Plaintiff, Pete Martinez, initiated this action against Defendants, Bhupendra Singh Virk (“Virk”), Uber USA, LLC, Uber Technologies, Inc., Rasier, LLC, Rasier-CA, LLC, Rasier, Portier, LLC, Uber Freight, LLC, and Uber, for injuries arising from a motor vehicle collision. Plaintiff alleges that, at the time of the collision, Virk was driving for Uber when Virk made an unsafe left turn and struck Plaintiff’s oncoming vehicle. The Complaint asserts causes of action for (1) Negligence-Motor Vehicle, (2) Negligent Infliction of Emotional Distress, (3) Negligence, (4) Negligence Per Se, (5) Strict Products Liability, and (6) Negligent Hiring, Retention, and Supervision. The Fifth Cause of Action is asserted against Uber Technologies, Inc. Rasier LLC, and Rasier-CA, LLC (“Uber Defendants”) only. Plaintiff seeks punitive damages.

On August 11, 2023, the Uber Defendants filed this Demurrer to the Fifth Cause of Action for Strict Products Liability and Motion to Strike punitive damages from the Complaint. Plaintiff opposes[1] the demurrer and motion to strike. Uber Defendants reply.

A demurrer tests the legal sufficiency of the pleadings and will be sustained only where the pleading is defective on its face. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) “We treat the demurrer as admitting all material facts properly pleaded but not contentions, deductions or conclusions of fact or law. We accept the factual allegations of the complaint as true and also consider matters which may be judicially noticed. [Citation.]” (Mitchell v. California Department of Public Health (2016) 1 Cal.App.5th 1000, 1007; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604 [“the facts alleged in the pleading are deemed to be true, however improbable they may be”].) Allegations are to be liberally construed. (Code Civ. Proc., § 452.) In construing the allegations, the court is to give effect to specific factual allegations that may modify or limit inconsistent general or conclusory allegations. (Financial Corporation of America v. Wilburn (1987) 189 Cal.App.3rd 764, 769.) Judicial Council forms are not immune to demurrer. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.)

A demurrer may be brought if insufficient facts are stated to support the cause of action asserted. (Code Civ. Proc., § 430.10, subd. (e).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Where the complaint contains substantial factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a demurrer for uncertainty will be overruled or plaintiff will be given leave to amend. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the complainant to show the Court that a pleading can be amended successfully. (Ibid.)

Uber Defendants request judicial notice of Plaintiff’s Complaint and five trial court orders sustaining Uber’s demurrers to strict products liability causes of action. (See Request for Judicial Notice, Exs. A, B, C; Declaration of Kathryn A. Callaghan Decl., Exs. B, C, and D.)

Defense counsel has complied with the meet and confer requirement.¿ (Callaghan Decl., ¶¶ 3-9.)

The Complaint alleges that Virk was logged onto to the Uber App at the time of the collision and was appearing as an Uber driver available for providing transportation services and/or food delivery services. (Complaint, ¶ 39.) Virk was viewing, monitoring, and/or interacting with his wireless communications device/smarthpone/GPS at or near the time of the collisions. (Complaint, ¶ 39.) The Uber Defendants designed and/or distributed the Uber App and/or GPS interface/system that Uber Drivers, including Virk, were required to use and furthermore trained or failed to adequately train them on how to use the app and interface. (Complaint, ¶ 193.) In doing so, Uber Defendants did place the App and GPS system into use and on the market. (Complaint, ¶ 194.) Uber Defendants had, or should have had, knowledge that the App and/or GPS interface would be used without inspection for defects and would be used in such a way as to violate one or more provisions of the California Vehicle Code and/or create a significant risk of the type of harm suffered by the Plaintiff in this action. (Complaint, ¶ 195.) Further, the App and/or GPS interface was defective. (Complaint, ¶ 197.)

Uber Defendants argue the Fifth Cause of Action for strict products liability fails as a matter of law because Uber Defendants’ application (“Uber App”) is not a product. Moreover, Uber Defendants are service providers. The Court agrees.

A defendant “may be held strictly liable for its product if the plaintiff was injured while using the product in a reasonably foreseeable way. In order for there to be strict liability, the product does not have to be unreasonably dangerous—just defective. Products liability may be premised upon a theory of design defect, manufacturing defect, or failure to warn.” (Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1000 [cleaned up].) “Whether or not a product was defectively designed or manufactured is a factual issue to be determined by the trier of fact. However, whether or not the subject object or instrumentality is a ‘product’ is a question of law for the trial court[.]” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1626.)

As the Court of Appeal has explained, “[t]he doctrine of strict liability in tort applies to producing and marketing enterprises responsible for placing products in the stream of commerce. Where purchase of a product is the primary objective or essence of the transaction, strict liability applies even to those who are mere conduits in distributing the product to the consumer. Courts have not extended the doctrine of strict liability to transactions whose primary objective is obtaining services. Courts have also declined to apply strict liability where the transaction’s service aspect predominates and any product sale is merely incidental to the provision of the service.” (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 344, internal citations omitted.)

Here, the Complaint consistently alleges that Uber Defendants are service providers engaged in the business of transportation and food delivery services. (See, e.g., Complaint, ¶¶ 3, 8, 11, 37-40, 44-47.) The Uber App is the medium through which an Uber user may access transportation or food delivery services. (See Complaint, ¶¶ 3, 7.) Further, Plaintiff alleges that, at the time of the incident, Virk was operating her vehicle to pick up an Uber food order for delivery. (Complaint, ¶¶ 33-35, 39.) With respect to the Uber App, Plaintiff alleges, “use and/or monitoring of the APP and its interface, was a proximate cause of this collision, including, but not limited to its causing Virk to be distracted while driving.” (Complaint, ¶ 55.)

The foregoing allegations make clear that Virk was using the Uber App to provide food delivery services and further, that the Uber App is not a product but a way to connect Uber drivers, like Virk, to Uber users seeking transportation or food delivery services. In other words, the service aspect predominates. Importantly, the Complaint is also devoid of allegations showing that the Uber App is a product. For instance, there are no allegations that the Uber App is a product available for purchase.

Plaintiff has filed an opposition which, curiously, challenges Uber Defendants’ demurrer to the negligence cause of action. However, Uber Defendants demur only to the strict products liability cause of action. Plaintiff’s opposition does not address any of the arguments raised in the demurrer. In effect, Plaintiff concedes his strict products liability claim is defective.

Based on the foregoing, the demurrer to the Fifth Cause of Action is SUSTAINED. Further, as Plaintiff fails to provide any explanation of how the complaint may be amended to properly state a claim for strict products liability, the Court finds the Complaint is incapable of amendment. Therefore, leave to amend is DENIED.

Any party, within the time allowed to respond to a pleading, may serve and file a motion to strike the whole pleading or any part thereof. (Code Civ. Proc., § 435, subd. (b)(1); Cal. Rules of Court, rule 3.1322, subd. (b).) On a motion to strike, the court may: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436, subds. (a)-(b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

In ruling on a motion to strike punitive damages, “judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) To state a prima facie claim for punitive damages, a plaintiff must allege the elements set forth in the punitive damages statute, Civil Code section 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) Per Civil Code section 3294, a plaintiff must allege that the defendant has been guilty of oppression, fraud, or malice. (Civ. Code, § 3294, subd. (a).) Under Civil Code section 3294, subdivision (b), “[a]n employer shall not be eligible for damages pursuant to subdivision (a), based upon acts of an employee of the employer unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.”

“[T]he imposition of punitive damages upon a corporation is based upon its own fault. It is not imposed vicariously by virtue of the fault of others.” (City Products Corp. v. Globe Indemnity Co. (1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do not have minds capable of recklessness, wickedness, or intent to injure or deceive. An award of punitive damages against a corporation therefore must rest on the malice of the corporation’s employees. But the law does not impute every employee’s malice to the corporation. Instead, the punitive damages statute requires proof of malice among corporate leaders: the officers, directors, or managing agents.” (Cruz v. Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].)

Further, a plaintiff must assert facts with specificity to support a conclusion that a defendant acted with oppression, fraud or malice. To wit, there is a heightened pleading requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10 Cal.App.4th 1033, 1041-1042.) “When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice. When a defendant must produce evidence in defense of an exemplary damage claim, fairness demands that he receive adequate notice of the kind of conduct charged against him.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].) In Anschutz Entertainment Group, Inc. v. Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to their claim for punitive damages were “insufficient to meet the specific pleading requirement.” (Anschutz Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643 [plaintiffs alleged “the conduct of Defendants was intentional, and done willfully, maliciously, with ill will towards Plaintiffs, and with conscious disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the malicious conduct of Defendants. Defendants' conduct justifies an award of exemplary and punitive damages”]; see also Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. Not only must there be circumstances of oppression, fraud, or malice, but facts must be alleged in the pleading to support such a claim”].)

Here, Uber Defendants move to strike Plaintiff’s claim for punitive damages because, Defendants argue, the complaint fails to allege facts showing fraud, oppression, or malice on the part of Defendants, and fails to allege facts demonstrating authorization or ratification on the part of an officer, director or managing agent of the Uber Defendants.

Plaintiff contends punitive damages are appropriate where there are allegations of driving while intoxicated. Plaintiff further contends the Complaint adequately pleads the requisite state of mind to impose punitive damages against Uber Defendants. These contentions fail. Although the Complaint has alleged Virk was driving while under the influence of a substance, (Complaint, ¶¶ 159-160), the allegations are conclusory and unsupported by facts. As to punitive damages against Uber Defendants, Plaintiff references allegations that do not appear in the Complaint. (Opposition to Motion to Strike, pp. 7:26-8:5.) Nor does the Complaint allege that an Uber officer director or managing agent authorized or ratified the Virk’s driving while allegedly under the influence. Moreover, in the absence of facts showing Virk was driving under the influence at the time of the incident, this case concerns a routine motor vehicle accident. “Ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 899-900.) Based on the allegations, this is not the proper case for punitive damages.

In sum, the Complaint is deficient. As such, the motion to strike punitive damages is GRANTED. Leave to amend is DENIED.

The demurrer to the Fifth Cause of Action for Strict Products Liability is sustained. Leave to amend is denied.

The motion to strike is granted. Leave to amend is denied. If Plaintiff later discovers facts supporting punitive damages allegations, Plaintiff may seek leave to amend.

Plaintiff is ordered to file a First Amended Complaint consistent with this order within 10 days of this order.

Uber Defendants are ordered to serve and file its responsive pleading within 30 days of service of the First Amended Complaint.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

[1] Plaintiff’s filed untimely oppositions to the Demurrer and Motion to Strike. The Court exercises its discretion and considers the merits of Plaintiff’s oppositions. (Cal. Rules of Court, rule 3.1300(d).)