United States District Court, N.D. California
ORDER RE: MOTION TO DISMISS RE: DKT. NOS. 13, 19,
JACQUELINE SCOTT CORLEY MAGISTRATE JUDGE.
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). (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.
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.)
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.)
assailant is currently facing criminal charges that could
result in a life sentence. (Id. at ¶ 47.)
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.)
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.)
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.
The Assault, Battery, and False Imprisonment Claim
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.
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).
Principal Intentionally or Carelessly Creates Impression of
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).
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 ¶¶ 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 ...