Judge: Lisa R. Jaskol, Case: 23STCV17782, Date: 2023-10-04 Tentative Ruling
Case Number: 23STCV17782 Hearing Date: October 4, 2023 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On July 28, 2023, Plaintiffs Lilit Hakobyan and Khachatur Aspoyan filed this action against Defendants Uber Technologies, Inc. (“Uber”), Lashane Philips (“Philips”), and Does 1-10 for (1) negligence, (2) negligent hiring, retention, supervision and training, (3) assault and battery, and (4) intentional infliction of emotional distress. On September 12, 2023, the Court dismissed Plaintiffs’ claim for punitive damages against Uber without prejudice at Plaintiffs’ request.
On September 8, 2023, Uber filed a demurrer to be heard on October 4, 2023. On September 21, 2023, Plaintiffs filed an opposition. On September 27, 2023, Uber filed a reply.
Trial is scheduled for January 3, 2024.
PARTIES’ REQUESTS
Uber requests that the Court sustain the demurrer to the first, third and fourth causes of action for failure to allege sufficient facts to state a cause of action.
Plaintiffs request that the Court overrule the demurrer.
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”].)
“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.)
B. Vicarious liability
“[A] principal who personally engages in no misconduct may be vicariously liable for the tortious act committed by an agent within the course and scope of the agency. [Citation.] Agency is the relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act . . . .[Citation.]” (Barenborg v. Sigma Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 85.)
DISCUSSION
A. The complaint
Plaintiffs allege the following:
On September 25, 2022, Plaintiffs ordered a ride from Uber. During the ride, Plaintiff Lilit Hakobyan became nauseous and vomited in the back seat of the vehicle. Plaintiffs apologized and offered to pay Philips, the driver, compensation to clean the vehicle. Philips became aggressive and refused to take Plaintiffs home. Plaintiffs protested and begged Philips to take them to their destination. Philips, however, refused to transport Plaintiffs any further. Philips then stabbed Plaintiffs with a knife, severely injuring them.
Philips was Uber’s employee and was acting in the scope of Philips’ employment. Uber knew or should have known about Philips’ violent propensities before the attack. Uber’s negligence and negligent hiring, retention, supervision and training of Philips caused the attack and Plaintiffs’ injuries. Uber is also vicariously liable for Philips’ acts under the doctrine of respondeat superior.
B. The demurrer
1. “Independent” driver
Uber asserts that Plaintiffs’ claims for negligence, assault and battery, and intentional infliction of emotional distress (the first, third, and fourth causes of action) fail to state facts sufficient to constitute a cause of action because, as a matter of law, Uber cannot be held vicariously liable for assaults committed by an independent driver.
The complaint alleges that Philips was Uber’s employee. Uber has not asked the Court to take judicial notice of any information establishing that, as Uber argues, Philips was really “independent” of Uber. Therefore, the Court assumes for purposes of the demurrer that Philips was Uber’s employee.
2. Scope of employment
Even if Philips was Uber’s employee, Uber argues, Uber cannot be vicariously liable for purposes of the first, third, and fourth causes of action because Philips’ assault of Plaintiffs fell outside the scope of Philips' employment.
“In Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 48 Cal.Rptr.2d 510, 907 P.2d 358 [(Lisa M.)], our Supreme Court outlined the principles applicable to determining whether an employer may be held liable, on a theory of respondeat superior, for the intentional tort of an employee: ‘The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment. [Citation.] Equally well established, if somewhat surprising on first encounter, is the principle 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. [Citations.] What, then, is the connection required between an employee's intentional tort and his or her work so that the employer may be held vicariously liable? [¶] It is clear, first of all, that California no longer follows the traditional rule that an employee's actions are within the scope of employment only if motivated, in whole or part, by a desire to serve the employer's interests. [Citation.] . . . . [¶] While the employee thus need not have intended to further the employer's interests, the employer will not be held liable for an assault or other intentional tort that did not have a causal nexus to the employee's work. This rule, too, can be traced to [Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652 (Carr)]. There the court acknowledged that “[i]f an employee inflicts an injury out of personal malice, not engendered by the employment, the employer is not liable.” [Id. at p. 656.] We further explained that in the case under consideration the attack was, indeed, “an outgrowth” of the employee's work: “Not only did the altercation leading to the injury arise solely over the performance of [the employee's] duties, but his entire association with plaintiff arose out of his employment on the building under construction.” [Id. at p. 657.] ’ ” (Flores v. AutoZone W., Inc. (2008) 161 Cal.App.4th 373, 379-380 (Flores), quoting Lisa M., supra, 12 Cal.4th at pp. 296–298, fns. omitted.)
“The court [in Lisa M.] went on to make clear that ‘The nexus required for respondeat superior liability—that the tort be engendered by or arise from the work—is to be distinguished from “but for” causation. That the employment brought tortfeasor and victim together in time and place is not enough. We have used varied language to describe the nature of the required additional link (which, in theory, is the same for intentional and negligent torts): the incident leading to injury must be an “outgrowth” of the employment [Carr, supra, 28 Cal.2d at p. 657]; the risk of tortious injury must be ‘ “inherent in the working environment” ’ [id. at p. 656] or “ ‘ typical of or broadly incidental to the enterprise [the employer] has undertaken’ “ [Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960]. [¶] ... The employment, in other words, must be such as predictably to create the risk employees will commit intentional torts of the type for which liability is sought.’ ” (Flores, supra, 161 Cal.App.4th at p. 380, quoting Lisa M., supra, 12 Cal.4th at pp. 298–299, fn. omitted.)
“The question, then, is whether an employee's physical eruption, stemming from his interaction with a customer, is a predictable risk of retail employment. Our Supreme Court has suggested it may well be: ‘Flare-ups, frustrations, and disagreements among employees are commonplace in the workplace and may lead to “physical act[s] of aggression.” [Citations omitted.] “ ‘In bringing [people] together, work brings [personal] qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flareup.... These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment.’ [Citations.]” [Citations omitted.]’ ” (Flores, supra, 161 Cal.App.4th at p. 380, quoting Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th 995, 1008–1009.)
“Although the courts in both Carr and Parkhouse Tire Service were addressing the risk of violence between coworkers, rather than between an employee and customer, we cannot draw a meaningful distinction between the two scenarios. The workplace stresses and strains which might cause an employee to erupt in anger are not dependent upon whether the person who happens to be standing in the line of fire is a coworker or a retail customer. (See Greenfield v. Spectrum Investment Corp. (1985) 174 Cal.App.3d 111, 118, 219 Cal.Rptr. 805, overruled on other grounds in Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 664, 25 Cal.Rptr.2d 109, 863 P.2d 179 [Budget Rent–A–Car customer severely beaten by employee following a dispute about the amount of a required deposit]; Stansell v. Safeway Stores, Inc. (1941) 44 Cal.App.2d 822, 113 P.2d 264 [store manager assaulted customer in dispute about grocery order]; Hiroshima v. Pacific Gas & Electric Co. (1936) 18 Cal.App.2d 24, 63 P.2d 340 [utility employee assaulted customer following dispute about payment.] In either scenario, as the foregoing authorities establish, ‘flare-ups [and] frustrations’ are commonplace for employees during the course of their work.” (Flores, supra, 161 Cal.App.4th at pp. 380-381.)
In Flores, the defendant argued that the altercation between its employee and the customer could not be viewed as an “outgrowth[ ] of employment” because it was not attributable to “work-related events or conditions.” The defendant argued it was not until after the employee “had completed the appointed task of directing the [customer] to the location where the price for motor oil was displayed,” that “a spark of malice ... was suddenly and unexpectedly ignited after [the employee] heard he should not have come to work.” The defendant argued that spark was “purely personal,” and “had nothing to do with the price of oil, or retrieving a case off the shelf for [the customer.]” (Flores, supra, 161 Cal.App.4th at p. 381, citations omitted.)
The Court of Appeal reversed the trial court’s order granting summary judgment: “In our view, the anger generated during the interaction between [the customer] and [the employee] cannot be so tidily compartmentalized—at least not as a matter of law. While it may be true that [the employee] did not develop his malicious “spark” until the moment [the customer] made his last comment, a jury could certainly infer from his prior comments that his anger had been ‘sparked’ at an earlier point. ‘Ordinarily, the determination whether an employee has acted within the scope of employment presents a question of fact; it becomes a question of law, however, when ‘the facts are undisputed and no conflicting inferences are possible.’ [Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213.] Here, even if the ‘facts’ could be characterized as undisputed, the possible inferences to be drawn from those facts cannot.” (Flores, supra, 161 Cal.App.4th at p. 381; see also id. at pp. 381-382.)
Applying the analysis set out in Flores, the Court overrules Uber’s demurrer to the first, third, and fourth causes of action. A jury could infer from the facts pleaded in Plaintiffs’ complaint that Philips’ assault on Plaintiffs was an outgrowth of Philips’ employment with Uber, exposing Uber to potential vicarious liability.
3. Negligent infliction of emotional distress
Uber challenges what it refers to as Plaintiff’s claim for negligent infliction of emotional distress. Plaintiffs have not asserted such a claim. The Court overrules Uber’s demurrer on this point.
CONCLUSION
The Court OVERRULES Defendant Uber Technologies, Inc.’s demurrer.
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.