Case Number: 19STCV14062 Hearing Date: June 24, 2019 Dept: 4A

Demurrer with Motion to Strike

The Court considered the moving, opposition, and reply papers and rules as follows.

BACKGROUND

On April 23, 2019, Plaintiff Iyabo Samuel (“Plaintiff”) filed a Complaint against Defendant Lyft, Inc. (“Lyft”) and David Doe (an individual employee of Lyft, Inc.) alleging (1) assault, (2) battery, (3) negligence, (4) negligent entrustment, (5) vicarious liability, (6) negligent hiring, training, and supervision, and (7) intentional infliction of emotional distress. Plaintiff alleges that she was insulted and then accosted by her Lyft driver.

Lyft filed the instant demurrer and motion to strike on May 24, 2019.

Trial is set for October 20, 2020.

PARTY’S REQUESTS

Lyft requests that this Court sustain its demurrer on the grounds that the Complaint fails to state sufficient facts to constitute a cause of action against Lyft.

Lyft also asks this Court to grant its motion to strike portions of the complaint on the grounds that the allegations of punitive damages are irrelevant and improper.

LEGAL STANDARD

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. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) 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.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, 147 Cal.App.4th at p. 747.)

Before filing a demurrer, the demurring party is required to meet and confer with the party who filed the pleading demurred to for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer.¿ (See Code of Civ. Proc. § 430.41.)

A motion to strike lies either (1) to strike any irrelevant, false or improper matter inserted in any pleading; or (2) to strike any pleading or part thereof not drawn or filed in conformity with the laws of this state, a court rule or order of court.¿ (Code Civ. Proc. § 436.)

DISCUSSION

Meet and Confer

The Court finds that Lyft has filed a sufficient meet and confer declaration. (Dean Decl., ¶¶ 5-8.)

Demurrer

First, Second, and Fifth Causes of Action: Assault, Battery, and Vicarious Liability

The Court notes that Lyft does not have standing to demur to the first and second causes of action as they are not asserted against it. Thus, the demurrer to the first and second causes of action is OVERRULED.

Plaintiff has attempted to state cause of action for vicarious liability against Lyft and incorporated by reference the allegations from the first and second causes of action. While there is no separate cause of action for vicarious liability, it appears that Plaintiff is alleging assault and battery against Defendant based on a theory of vicarious liability.

“Under the doctrine of respondeat superior, ‘an employer is vicariously liable for the torts of its employees committed within the scope of the employment.’” (Montague v. AMN Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1521 [citation omitted]). But an employer is not strictly liable for an employee’s intentional torts. For an employer to be liable for an intentional tort of an employee, the employee’s act must have a causal nexus to the employee’s work. (Id. [citation omitted]). Such an inquiry is grounded on an examination of the foreseeability of the alleged misconduct. “The conduct of an employee falls within the scope of his or her employment if the conduct either (1) is required by or incidental to the employee’s duties, or (2) it is reasonably foreseeable in light of the employer’s business.” (Id. at 522 [citation omitted]).

Here, Plaintiff has not alleged that the driver’s acts had a causal nexus to his work with Lyft, nor has she asserted any underlying allegations on which a causal nexus could be grounded.

Because there is no separate cause of action for vicarious liability, the Court SUSTAINS the demurrer to that cause of action. To the extent that Plaintiff means to assert respondeat superior as a means of holding Lyft liable for its driver’s actions, the Court SUSTAINS the demurrer to the first and second causes of action for assault and battery and grants Plaintiff twenty days’ leave to amend to add proper allegations supporting vicarious liability.

Third Cause of Action: Negligence

Plaintiff’s allegations of direct negligence on the part of Defendant appear to be duplicative of her cause of action for negligent hiring, training and supervision. To the extent that the cause of action is intended to assert such a claim, it is duplicative of the sixth cause of action and is vulnerable to demurrer on that basis. A demurrer can be sustained because one cause of action is duplicative of another cause of action. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

It may be that Plaintiff’s third cause of action is intended to assert that Lyft is vicariously liable for its driver’s negligence. With regard to negligent torts of employees, Civil Code Section 2338 states, “[u]nless required by or under the authority of law to employ that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as a part of the transaction of such business, and for his willful omission to fulfill the obligations of the principal.” Plaintiff has properly alleged that the driver was acting within the course and scope of his employment with Lyft, thus providing a basis for the company’s vicarious liability at this pleading stage.

“The elements of a negligence cause of action are duty, breach, causation and damages.” (See County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318 [citation omitted]). While Plaintiff arguably alleges that the driver had a duty “to provide safe and peaceful transportation service or ride to plaintiff,” the Complaint does not explain the nature of the driver’s negligence for which the defendants are to be held liable, as opposed to the intentional assault and battery that are described. Lacking such an allegation, neither the Court nor defendants can discern what kind of negligence is being asserted. Further, based on the current allegations in the complaint, it is impossible to determine whether this negligence claim is distinct from the causes of action alleging intentional torts for assault and battery

Because it cannot be determined whether the third cause of action duplicates Plaintiff’s first and second causes of action or is a distinct but inadequately pled claim, the demurrer to the third cause of action is SUSTAINED with twenty days’ leave to amend.

Fourth Cause of Action: Negligent Entrustment

To plead a cause of action for negligent entrustment, the Plaintiff must plead that (1) the driver was negligent in operating the vehicle, (2) Defendant owned the vehicle operated by the driver or had possession of the vehicle operated by the driver with the owner’s permission, (3) Defendant knew, or should have known, that the driver was incompetent or unfit to drive the vehicle, (4) Defendant permitted the driver to drive the vehicle, and (5) the driver’s incompetence or unfitness to drive was a substantial factor in causing harm to Plaintiff. (CACI No. 724.)

As Lyft points out, Plaintiff has failed to allege that the driver drove the vehicle in a negligent manner, that Lyft owned the subject vehicle or had possession of the vehicle operated by the driver with the owner’s permission, that Lyft knew or should have known that the driver was incompetent or unfit to drive the vehicle, or that the driver’s incompetence or unfitness to drive was a substantial factor in causing harm to Plaintiff. Indeed, given the underlying facts that are alleged by Plaintiff in her complaint, it does not appear that she has a negligent entrustment claim, but rather is seeking to assert a duplicative cause of action for negligent hiring, training and/or supervision.

Accordingly, the demurrer to the fourth cause of action is SUSTAINED with twenty days’ leave to amend.

Sixth Cause of Action: Negligent Hiring, Training, and Supervision

“California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Emphasis added.) (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) The Judicial Council of California Civil Jury Instruction No. 426 provides that Plaintiff must allege that (1) employer defendant hired, supervised and/or retained the employee, (2) employee was or became unfit or incompetent to perform the work for which they were hired, (3) employer defendant knew or should have known that employee was or became unfit or incompetent and that this unfitness or incompetence created a particular risk to others, (4) employee’s unfitness or incompetence harmed plaintiff, and employer defendant’s negligence in hiring, supervising, or retaining employee was a substantial factor in causing plaintiff’s harm. (CACI No. 426.)

At this pleading stage, the Court finds the allegations sufficient. Defendant’s argument that Plaintiff must make specific allegations to support each element of the cause of action is without merit. (See C.A. v. William S. Hart Union High Sch. Dist. (2012) 53 Cal. 4th 861, 872). “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (Id.).

Accordingly, the demurrer to the sixth cause of action is OVERRULED.

Seventh Cause of Action: Intentional Infliction of Emotional Distress (“IIED”)

To assert a cause of action for IIED, Plaintiff must allege facts establishing that (1) Defendant engaged in “extreme and outrageous” conduct, (2) Defendant intended to induce emotional distress, or otherwise recklessly disregarded for the possibility it would result, (3) Plaintiff actually suffered emotional distress, and (4) Plaintiff’s emotional distress was actually and proximately caused by the defendant’s conduct. (See Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259.)

Plaintiff has alleged the required elements for IIED. At this pleading stage, the allegations are sufficient to withstand a demurrer.

The demurrer to the seventh cause of action is OVERRULED.

Motion to Strike

Defendant moves to strike allegations asserting punitive damages in the Complaint.

Civil Code § 3294, subdivision (a) authorizes the recovery of punitive damages in non-contract cases where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice. (Civil Code § 3294(a).) An employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee, 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. (Civil Code § 3294(b).)

Here, Plaintiff has not alleged that any officer, director, or managing agent had advance knowledge of the driver’s unfitness and employed him with 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.

Accordingly, the motion to strike is GRANTED with twenty days’ leave to amend.

Moving Defendant is ordered to give notice.