Judge: Lisa R. Jaskol, Case: 23STCV03373, Date: 2023-09-19 Tentative Ruling
Case Number: 23STCV03373 Hearing Date: September 19, 2023 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On February 15, 2023, Plaintiff Jose Antonio Flores (“Plaintiff”) filed this action against Defendants Lyft, Inc. (“Lyft”) and Does 1-25 for general negligence, negligent hiring, retention and supervision, common carrier negligence, negligent failure to warn, vicarious liability for assault with a deadly weapon, assault and battery, vicarious liability for false imprisonment, intentional misrepresentation, negligent misrepresentation, negligent infliction of emotional distress and breach of contract. Plaintiff sought compensatory and punitive damages.
On May 18, 2023, the Court sustained Lyft’s demurrer and struck the punitive damage claim with leave to amend.
On June 13, 2023, Plaintiff filed a first amended complaint against Lyft and Does 1-25 for general negligence, negligent hiring, retention and supervision, common carrier negligence, vicarious liability for assault with a deadly weapon, vicarious liability for false imprisonment, intentional misrepresentation, negligent misrepresentation, negligent infliction of emotional distress, and breach of contract. Plaintiff seeks compensatory and punitive damages.
On August 21, 2023, Lyft filed a demurrer and a motion to strike to be heard on September 19, 2023. On September 6, 2023, Plaintiff filed oppositions. On September 12, 2023, Lyft filed replies.
Trial is scheduled for August 14, 2024.
PARTIES’ REQUESTS
In the demurrer, Lyft requests that the Court sustain the demurrer to the first, second, sixth, seventh, eighth, and ninth causes of action. In the motion to strike, Lyft requests that the Court strike the punitive damage claim.
Plaintiff requests that the Court overrule the demurrer and deny the motion to strike.
LEGAL STANDARD
A. Demurrer
“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:
“(a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading.
“(b) The person who filed the pleading does not have the legal capacity to sue.
“(c) There is another action pending between the same parties on the same cause of action.
“(d) There is a defect or misjoinder of parties.
“(e) The pleading does not state facts sufficient to constitute a cause of action.
“(f) The pleading is uncertain. As used in this subdivision, ‘uncertain’ includes ambiguous and unintelligible.
“(g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct.
“(h) No certificate was filed as required by Section 411.35.”
(Code Civ. Proc., § 430.10.)
In a demurrer proceeding, the defects must be apparent on the face of the pleading or by judicial notice. (Code Civ. Proc., § 430.30, subd. (a) [“When any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading”].)
B. Motion to strike
“Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof . . . .” (Code Civ. Proc., § 435, subd. (b)(1).) The Court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” (Code Civ. Proc., § 436, subd. (a).) “The grounds for a motion to strike shall appear on the face of the challenged pleading of from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 437, subd. (a).) “Where the motion to strike is based on matter of which the court may take judicial notice pursuant to Section 452 or 453 of the Evidence Code, such matter shall be specified in the notice of motion, or in the supporting points and authorities, except as the court may otherwise permit.” (Code Civ. Proc., § 437, subd. (b).)
“In order to survive a motion to strike an allegation of punitive damages, the ultimate facts showing an entitlement to such relief must be pled by a plaintiff.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255 (Clauson).) “In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.” (Ibid.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Ibid.)
C. Punitive damages
“(a) In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.
“(b) An employer shall not be liable 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. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.
“(c) As used in this section, the following definitions shall apply:
“(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.
“(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.
“(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.
(Civ. Code, § 3294, subds. (a), (b), (c).)
DISCUSSION
A. Demurrer
1. Request for judicial notice
The Court grants Lyft’s request for judicial notice of Plaintiff’s complaint filed February 15, 2023, the Court’s May 18, 2023 order sustaining the demurrer with leave to amend, and Plaintiff’s first amended complaint filed on June 13, 2023. (Evid. Code, §§ 452, subd. (d), 453.)
2. First amended complaint
Plaintiff alleges that Lyft knew that some of its drivers have acted violently or harassed passengers. Plaintiff also alleges that Lyft does not adequately screen its drivers or ensure that passengers reach their destination safely.
3. Negligent hiring, retention and supervision
“ ‘An employer may be liable to a third person for the
employer's negligence in hiring or retaining an employee who is incompetent or
unfit. [Citation.]’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172
Cal.App.4th 1133, 1139, quoting Roman Catholic Bishop v. Superior Court
(1996) 42 Cal.App.4th 1556, 1564-1565 (Roman Catholic Bishop).) “Negligence liability will be imposed on an
employer if it “ ‘knew or should have known that hiring the employee created a
particular risk or hazard and that particular harm materializes.’ ” (Ibid.,
quoting Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)
In the Court’s May 18, 2023, order sustaining Lyft’s demurrer to Plaintiff’s original complaint, the Court observed that Plaintiff alleged that Lyft was on notice that some drivers were violent or harassed customers but Plaintiff did not allege facts showing Lyft was on notice that the driver who allegedly assaulted Plaintiff was potentially violent. The Court also found that Plaintiff did not allege facts showing Lyft should have been on notice that the driver posed a risk of violence.
Because the allegations in Plaintiff’s original complaint did not state a claim for negligent hiring, retention, and supervision, the Court has considered the newly-added allegations in Plaintiff’s first amended complaint. These include the following: (1) “officer(s), director(s), and/or managing agent(s) of LYFT had advance knowledge of the unfitness of LYFT DRIVER and employed him with a knowing disregard of the rights or safety of others” (FAC ¶ 13), (2) “Lyft failed to continuously monitor for criminal behaviors and convictions of drivers after an annual background check” (FAC ¶ 38), (3) “Lyft should have continuously monitored for criminal behaviors and convictions of LYFT DRIVER” (FAC ¶ 39), and (4) “Lyft knew or should have known that the LYFT DRIVER at issue had propensity to violent behavior and was likely to commit an assault against riders including Plaintiff. . . . Lyft should have foreseen the warning signs, danger, and risk posed by the LYFT DRIVER” (FAC ¶ 41).
“For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded (i.e., all ultimate facts alleged, but not conclusions, deductions, or conclusions of facts or law).” (L. Edmon and C. Karnow, Cal. Practice Guide: Civil Procedure Before Trial (Rutter 2023) ¶ 7:43, p. 7(l)-25, emphasis omitted (Cal. Practice Guide).) Plaintiff’s new allegations are not properly pleaded material facts. They are conclusions, deductions, or conclusions of facts or law. Even when viewed together with the previously pleaded allegations, Plaintiff’s new allegations do not state a claim for negligent hiring, retention, and supervision.
In addition, the first amended complaint asserts, “even if LYFT had no actual knowledge of LYFT DRIVER’s past, the facts stated above present that LYFT had reason to know or should have known that LYFT DRIVER was unfit, and that LYFT failed to use reasonable care in investigating LYFT DRIVER.” (FAC ¶ 37.) The first amended complaint cites Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828 (Evan F.) to support this assertion. (FAC ¶ 37.)
“In Evan F., 13-year-old Evan was molested in 1985 by Murphy, the pastor of the local Methodist congregation. Ten years before, Murphy had agreed with the larger church conference to ‘step down’ after several adolescent males complained he molested them.” (Roman Catholic Bishop, supra, 42 Cal.App.4th at pp. 1565-1566, quoting Evan F., supra, 8 Cal.App.4th at p. 832.) “After working as a counselor at a secular high school, Murphy applied and was hired by the local congregation in 1977 to work as its youth director. In 1982 he applied for the position of pastor of the same congregation.” (Id. at p. 1566.)
“At the time of his selection as pastor, the larger church conference not only knew of the 1970 molestations, but also that Murphy had recently been fired by the high school for ‘inappropriate behavior with an adolescent male.’ ” (Roman Catholic Bishop, supra, 42 Cal.App.4th at pp. 1565-1566, quoting Evan F., supra, 8 Cal.App.4th at p. 832.) “The conference further knew Murphy wanted reinstatement to the ministry only if he were appointed to the particular local congregation. The local congregation knew, at the very least, that there was ‘some difficulty’ with Murphy’s reinstatement.” (Ibid., quoting Evan F., supra, 8 Cal.App.4th at p. 833.)
“On appeal, the court reversed a grant of summary judgment, concluding Evan could state a cause of action against the local congregation for negligent hiring for its failure to investigate or make any inquiry regarding Murphy’s fitness to serve as pastor.” (Roman Catholic Bishop, supra, 42 Cal.App.4th at p. 1566, footnote omitted.)
In contrast to Evan F., “where facts encompassed the particular risk of harm if Murphy were employed” (Roman Catholic Bishop, supra, 42 Cal.App.4th at p. 1566), here Plaintiff has pleaded no facts showing an undue risk of harm that the Lyft driver would assault a Lyft customer if Lyft employed him (see ibid.).
The Court sustains the demurrer to the claim for negligent hiring, supervision, and retention.
4. General negligence
“The elements of a negligence claim [are] . . . a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)
The Court’s May 18, 2023 order sustaining Lyft’s demurrer explained that the complaint did not state a claim for negligence because Plaintiff had not pleaded facts showing how Lyft’s alleged failure to conduct adequate background checks and implement safety systems caused Plaintiff’s injuries.
The first amended complaint adds the following allegations to the general negligence claim: (1) Lyft breached its duty to use due care by not improving its safety procedures, not adequately screening and monitoring its drivers, and not establishing a reliable system for addressing passenger reports of assault or violence committed by its drivers (FAC ¶ 23), (2) Lyft failed to continuously monitor for criminal behaviors and convictions of drivers after an annual background check (FAC ¶ 27).
The new allegations do not cure the defect – failure to plead facts showing causation – which caused the Court to sustain the demurrer to this claim in the previous complaint.
The Court sustains the demurrer to the general negligence claim.
5. Negligent infliction of emotional distress
In the Court’s May 18, 2023, order, the Court explained that negligent infliction of emotional distress (NIED) is not a separate tort from negligence. The Court directed Plaintiff to include NIED in the negligence claim if Plaintiff wished to include these claims in an amended complaint.
Plaintiff nonetheless included a separate NIED claim in the first amended complaint. The Court sustains the demurrer to the NIED claim for the reasons stated in the May 18, 2023, order and in the Court’s discussion above of the negligence claim in the first amended complaint.
6. Intentional and negligent misrepresentation
Plaintiff alleges he relied on Lyft’s representations about safety in agreeing to ride with the Lyft driver. Plaintiff points to Lyft's general representations about safety: “Safety for all means looking out for our riders”; “proactive safety features are always on”; “High safety standards”; “Proactive safety support.” (FAC ¶ 7.) “LYFT represented to Plaintiff and the general public that safety was LYFT’s top priority.” (FAC ¶ 75.) Driver “background checks and safety education.” (FAC ¶ 87.)
The alleged assault on Plaintiff by the Lyft
driver does not render Lyft’s general safety representations untrue and Plaintiff does not plead facts showing the representations are untrue. Moreover, Plaintiff could not reasonably rely
on these general statements because they do not promise anything specific.
However, the first amended complaint also alleges that Lyft falsely stated that it “would provide Plaintiff with a safe ride to his destination.” (FAC ¶ 77.) This is a specific representation on which a person could reasonably rely. Assuming, as the Court must on a demurrer, that Lyft made this representation to Plaintiff and Plaintiff relied on it (FAC ¶ 80), the misrepresentation was untrue because the Lyft driver allegedly assaulted Plaintiff during the ride.
The first amended complaint does not, however, meet the pleading standard for a fraud claim, which must be pleaded with particularity. (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 635 [“In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] “ ‘Thus “ ‘the policy of liberal construction of the pleadings ... will not ordinarily be invoked to sustain a pleading defective in any material respect.’ ” ' [Citation.] [¶] This particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered’ ” '”].)
Accordingly, the Court sustains the demurrer to the
intentional misrepresentation claim and overrules the demurrer to the negligent
misrepresentation claim.
7. Breach of contract
Lyft asks the Court to sustain the demurrer to the breach of contract claim because Plaintiff did not attach a copy of the contract to the complaint or allege the complaint’s material terms. Lyft also argues that Plaintiff has not alleged facts showing he was the intended beneficiary of a contract between Lyft and Plaintiff’s friend.
Plaintiff has adequately pleaded a claim for breach of contract as a third-party beneficiary. The first amended complaint alleges that “Plaintiff’s friend requested a ride through LYFT’s mobile app on Plaintiff’s behalf.” (FAC ¶ 6; see FAC ¶ 120 [“Plaintiff’s friend requested a ride using his LYFT mobile application on Plaintiff’s behalf, entering into a contract with LYFT to provide safe transportation service. Plaintiff’s friend’s payment of a fee to LYFT in exchange for safe and reasonable transportation for his friend was his commercial transaction with LYFT entering into the contract with LYFT”].) The first amended complaint alleges that Plaintiff was the third-party beneficiary of a contract between Lyft and Plaintiff’s friend “to provide safe transportation service.” (FAC ¶ 120.)
The Court overrules the demurrer to the breach of contract claim.
B. Motion to strike punitive damage claim
1. Request for judicial notice
The Court grants Lyft’s request for judicial notice of Plaintiff’s complaint filed February 15, 2023, the Court’s May 18, 2023 order striking portions of the complaint with leave to amend, and Plaintiff’s first amended complaint filed on June 13, 2023. (Evid. Code, §§ 452, subd. (d), 453.)
The Court denies Lyft’s request for judicial notice of superior court decisions.
2. The first amended complaint does not allege facts that support a punitive damage claim
The Court’s May 18, 2023 order granted Lyft’s motion to strike Plaintiff’s punitive damage claim because the complaint did not plead facts showing malice, fraud, or oppression. The first amended complaint attempts to revive the punitive damage claim.
Punitive damages are not available on Plaintiff’s intentional misrepresentation claim because the Court has sustained Lyft’s demurrer to it. Although Plaintiff has added a request for punitive damages to his breach of contract claim, punitive damages are not available for that claim. (See Civ. Code, § 3294, subd. (a) [punitive damages available “In an action for the breach of an obligation not arising from contract” (emphasis added)].)
The first amended complaint includes new requests for punitive damages on Plaintiff’s vicarious liability claims (the fourth and fifth causes of action). Plaintiff also added allegations that (1) “officer(s), director(s), and/or managing agent(s) of LYFT had advance knowledge of the unfitness of the LYFT DRIVER and employed him with a knowing disregard of the rights or safety of others” (FAC ¶ 13) and (2) “one or more officers, directors, and/or managing agents of LYFT knew of the conduct constituting malice, oppression, and/or fraud and adopted or approved that conduct after it occurred” (FAC ¶ 17; see FAC ¶¶ 15-16.)
“An employer shall not be liable for [punitive] damages [under Civil Code section 3294, subd. (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. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” (Civ. Code, § 3294, subd. (b).)
The first amended complaint does not allege facts showing that an officer, director, or managing agent of Lyft had advance knowledge of the Lyft driver’s unfitness and employed him with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which punitive damages are sought or was personally guilty of oppression, fraud, or malice. Despite language in the first amended complaint that tracks the language of Civil Code section 3294, subdivision (b), the allegations are simply “legal conclusions in [the] pleading” and “‘irrelevant matter,’ subject to motion to strike.” (California Practice Guide, supra, ¶ 7:179, p. 7(l)-79.)
The Court therefore grants the motion to strike the punitive damage claim.
CONCLUSION
The Court SUSTAINS Defendant Lyft, Inc.’s demurrer to Plaintiff Jose Antonio Flores’s claim for negligent hiring, supervision, and retention with 30 days leave to amend.
The Court SUSTAINS Defendant Lyft, Inc.’s demurrer to Plaintiff Jose Antonio Flores’s claim for negligent infliction of emotional distress with prejudice. This ruling does not prevent Plaintiff from seeking all available damages on his general negligence claim if he files an amended complaint.
The Court SUSTAINS Defendant Lyft, Inc.’s demurrer to Plaintiff Jose Antonio Flores’s claim for intentional misrepresentation with 30 days leave to amend.
The Court GRANTS Defendant Lyft, Inc.’s motion to strike Plaintiff Jose Antonio Flores’s claim for punitive damages and all references in the complaint to punitive damages (FAC ¶¶ 65, 71, 83, 126 and in the prayer for relief) with 30 days leave to amend.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days of the date of the hearing.