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Doe v. Uber Technologies, Inc.

United States District Court, N.D. California

November 22, 2019

JANE DOE, Plaintiff,
UBER TECHNOLOGIES, INC., et al., Defendants.

          ORDER RE: MOTION TO DISMISS RE: DKT. NOS. 13, 19, 20


         Jane Doe brings tort claims against Uber after she was assaulted by a former Uber driver posing as a current Uber driver. Uber and its wholly owned subsidiaries Rasier, LLC and Rasier CA, LLC (collectively “Uber”) move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).[1] (Dkt. No. 13.) After careful consideration of the parties' briefing and having had the benefit of oral argument, the Court GRANTS Defendants' motion to dismiss, with leave to amend. While Plaintiff has plausibly alleged ostensible agency, she has not plausibly alleged that the assailant was acting within the scope of his ostensible agency when he assaulted Plaintiff. Nor has she plausibly alleged that she had a common carrier/passenger relationship with Uber in connection with the assault.


         A. Complaint Allegations

         On August 14, 2018, Jane Doe asked her boyfriend to call an Uber for her as Doe's phone had low battery. (Complaint at ¶ 49.) Doe's boyfriend was not with her, so she did not know which driver Uber had assigned to pick her up. (Id.) The car that approached Doe had an Uber decal on the car's windshield. (Id. at ¶ 50.) Doe got into the car because she saw the Uber decal and “she believed, perhaps mistakenly, that the driver said her boyfriend's name when she approached the car.” (Id.) After she entered the vehicle, the driver activated the child-proof locks on the car's doors, drove to a remote location, and raped and partially strangled Jane Doe. (Id. at ¶ 46.) The assailant then began to drive to another location, but Doe escaped and was rescued by a passing motorist. (Id.)

         Months before Doe's assault, Uber had learned that the assailant, while an authorized Uber driver, had behaved disturbingly while giving another woman a ride in an Uber. (Id. at ¶ 52.) Upon investigation, the assailant told Uber that he had driven the passenger off her route, flirted with her, and taken her to a horse stable. (Id.) Uber suspended the assailant's access to the Uber app, thus taking away his ability to sign on and pick up riders as an Uber driver. (Id. at ¶ 53.) However, Uber did not attempt to retrieve the Uber decal that Jane Doe recognized the day she entered the assailant's car. (Id.)

         The assailant is currently facing criminal charges that could result in a life sentence. (Id. at ¶ 47.)

         B. Procedural Background

         Jane Doe is Plaintiff's pseudonym. Her complaint pleads two claims for relief: (1) assault, battery, and false imprisonment by ostensible agent, and (2) negligence. Plaintiff filed these state law claims in federal court based on diversity of citizenship. 28 U.S.C. § 1332. Plaintiff is a citizen of Mexico and alleges that the amount in controversy exceeds $75, 000. (Dkt. No. 1 at ¶ 6.)

         Defendants Uber, Rasier, LLC and Rasier CA, LLC filed the underlying Motion to Dismiss on July 24, 2019 based on Plaintiff's failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). (Dkt. No. 13.) The motion is fully briefed and came before the Court for a hearing on September 26, 2019. (Dkt. No. 13, 19, 20.)


         Plaintiff contends that Uber is liable based on two theories of liability: first, Uber is vicariously liable for Jane Doe's assault, battery, and false imprisonment by its ostensible agent, and second, Uber was negligent and owed her a heightened duty of care as a common carrier.

         A. The Assault, Battery, and False Imprisonment Claim

         Plaintiff's first claim for relief seeks to hold Uber vicariously liable for her assailant's assault based on ostensible agency. Uber contends that the claim fails because Plaintiff has not alleged facts that plausibly support a finding that the assailant was Uber's ostensible agent and, even if so, the assailant was acting outside the scope of such agency as a matter of law.

         1. Ostensible Agency

         Ostensible agency occurs “when the principal intentionally, or by want of care, causes a third person to believe another to be his agent who is not really employed by him.” Cal. Civ. Code § 2300. The principal (Uber) is liable in tort for the acts of ostensible agent (the assailant) when (1) the principal intentionally or carelessly creates the impression that an individual is the principal's agent; (2) the plaintiff reasonably believes that the individual is the principal's agent; and (3) the plaintiff is harmed because of her reasonable reliance on such belief. Whitlow v. Rideout Mem'l Hosp., 237 Cal.App.4th 631, 636 (2015).

         i. Principal Intentionally or Carelessly Creates Impression of Agency

         The first element of ostensible agency requires the principal to intentionally or negligently allow others to believe the agent has authority. Kaplan v. Coldwell Banker Residential Affiliates, Inc., 59 Cal.App.4th 741, 747 (1997). However, “[o]stensible agency cannot be established by the representations or conduct of the purported agent; the statements or acts of the principal must be such as to cause the belief the agency exists.” J.L. v. Children's Inst., Inc., 177 Cal.App.4th 388, 404 (2009).

         Although ostensible agency cannot be inferred solely from the actions of the agent, the law does not require the principal to make explicit representations about the agent's authority. C.A.R. Transp. Brokerage Co., Inc. v. Darden Restaurants, Inc.,213 F.3d 474, 480 (9th Cir. 2000). The agent's authority can be inferred from the circumstances and can be proved via circumstantial evidence. Id. at 480. Plaintiff has plausibly alleged that Uber at least negligently allowed others to believe that the assailant was an authorized Uber driver. First, through its advertising, Uber intentionally encouraged its customers to identify the Uber decal as indicating that a driver with a decal is a safe and authorized Uber driver. (Dkt. No. 1 at ΒΆΒΆ 23, 29, 30-35, 42-45.) Second, Uber provided the assailant with the Uber decal and then failed to take any action to reclaim the decal after it ...

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