Plaintiff Kyle Testa, while a passenger in a Lyft vehicle, was allegedly assaulted by the driver, Robert Doe. Testa is suing Robert Doe for assault, battery, intentional infliction of emotional distress (IIED), and negligence. In addition, Testa has brought claims against Lyft for general negligence and negligent hiring, supervision, and retention. Lyft has filed a demurrer against the fourth cause of action for negligence and the fifth cause of action for negligent hiring, supervision, and retention, arguing that the complaint fails to provide sufficient facts to support these causes of action. Specifically, Lyft contends that the complaint does not allege that it had any reason to know that Robert Doe posed a danger to Lyft passengers. 

Analysis¿¿ 

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Before filing a demurrer, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading.¿ (CCP § 430.41.)¿¿The parties have fulfilled the meet and confer requirement and Plaintiff does not oppose the motion on this ground.¿ 

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A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (CCP §§ 430.30, 430.70.) At the pleading stage, a plaintiff need only allege ultimate facts sufficient to apprise the defendant of the factual basis for the claim against him. (Semole v. Sansoucie (1972) 28 Cal. App. 3d 714, 721.) A “demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction of instruments pleaded, or facts impossible in law.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732, internal citations omitted.)¿¿¿ 

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“Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” (Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227.) It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  

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“[A]n employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) To establish a cause of action for negligent hiring, retention, or supervision, a plaintiff must show that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm occurs. (Z.V. v. County of Riverside (2015) 238 Cal.App.4th 889, 902.)¿ 

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Plaintiff has not pled ultimate facts on how Lyft was or should have been aware that employee Robert Doe would pose a risk to Lyft’s passengers. In the fifth cause of action, Plaintiff claims, "LYFT ... knew or should have known that Defendant ROBERT DOE was incompetent and unfit, and that his incompetence and unfitness created a particular risk to others, including Plaintiff." (Complaint ¶ 53.) This statement is a legal conclusion rather than an ultimate fact. 

While the complaint mentions that Lyft was notified of instances where its drivers have harassed and assaulted passengers (Complaint ¶ 35) and is aware the danger that some of its drivers pose (Complaint ¶ 38), it does not provide any specifics regarding Robert Doe. It fails to demonstrate how Lyft was or should have been aware of the specific risk posed by Robert Doe to passengers. Moreover, Plaintiff has not provided any legal authority on how a general awareness of misconduct by some drivers constitutes notice that a specific driver, in this instance Robert Doe, would harass and assault its passengers. 

A reasonable possibility exists that the cause of action for negligent hiring, supervision, or retention can be sufficiently pled if the allegations are made with greater specificity regarding Robert Doe. Therefore, the demurrer to the fifth cause of action is SUSTAINED with leave to amend. 

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In the opposition, Plaintiff discusses at length how the allegations in the complaint fulfill the criteria for common carrier liability. However, common carrier liability is distinct from general negligence. Similar to negligent supervision, common carrier liability has unique elements to prove, beyond the general elements of negligence. For example, to prevail in a common carrier claim, it must be demonstrated that Defendant is a common carrier within the meaning of Civil Code section 2168. 

With regard to general negligence, plaintiff must plead all of the elements including (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)¿ 

Causation is an essential element of establishing Defendant’s liability. (Tribeca Companies, LLC v. First American Title Insurance Company (2015) 239 Cal.App.4th 1088, 1102-03.) Causation includes both actual cause and proximate cause. (See id. at 1103.) A defendant’s negligence is the actual cause of the plaintiff’s injury if it is a substantial¿factor in bringing about the harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052-53.)¿¿Substantial factor requires the contribution of the individual cause to be more than negligible or theoretical. (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 79.) 

The complaint includes general allegations that (a) some of Lyft’s drivers have harassed and assaulted passengers (Complaint ¶35), (b) Lyft did not enhance its safety procedures (Complaint ¶ 36), Lyft misrepresented its service as safe (Complaint ¶ 39), and Lyft concealed complaints and allegations of driver misconduct from passengers. (Complaint ¶ 41-42.) It also includes claims that seem unrelated to the complaint, such as failing to cooperate with police, fostering an environment that encourages drivers to disregard signs of danger, and lacking a streamlined process for addressing reports of assault. (Complaint ¶ 43-45.) However, these are general allegations about Lyft's conduct and fail to illustrate how Lyft played more than a theoretical role in causing the Plaintiff's specific harm, other than Plaintiff's conclusory remark that the conduct of Defendants was a substantial factor in causing Plaintiff harm. (Complaint ¶49). If Plaintiff could demonstrate that Lyft knew or should have known about this specific driver's risk of danger and neglected to take any action, it would sufficiently show that Lyft was a substantial factor in Plaintiff's injuries. However, this is one method, not the sole method, to establish a substantial factor. Although Plaintiff has not yet provided sufficient facts in support of the fourth cause of action, a reasonable possibility remains that more detailed allegations could make a sufficient showing. Therefore, the demurrer to the fourth cause of action is SUSTAINED with leave to amend. 

PLEASE TAKE NOTICE:  

If a party intends to submit on this tentative ruling,¿the party must send an email to the court at¿sscdept27@lacourt.org¿with the Subject line “SUBMIT” followed by the case number.¿ The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.¿¿  

Unless¿all¿parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.¿ You should assume that others may appear at the hearing to argue.¿¿  

If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.¿ After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave.¿