The opinion
Filed 6/1/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
JANE DOE NO. 1 et al., B310131
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. 19STCV11874)
v.
UBER TECHNOLOGIES, INC.,
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Marc H. Epstein, Judge. Affirmed.
FEM Law Group, F. Edie Mermelstein; Rizio Lipinsky and
Darren Pirozzi for Plaintiffs and Appellants.
Perkins Coie, Bobbie J. Wilson, Julie L. Hussey, Julian
Feldbein-Vinderman and Gregory F. Miller for Defendants and
Respondents.
Morrison & Foerster and James R. Sigel for Chamber
of Commerce of the United States of America as Amicus Curiae
on behalf of Defendants and Respondents.
The instant appeal is from a judgment of dismissal following
a successful demurrer by respondents Uber Technologies, Inc.,
Rasier-CA, LLC, and Rasier, LLC (collectively, the Uber entities)
to a complaint filed against them by appellants, Jane Doe Nos. 1,
2, and 3 (collectively, the Jane Does). The Jane Does are women
who were abducted and then sexually assaulted by assailants who
lured the Jane Does into their vehicles by posing as authorized
drivers of the Uber entities’ ridesharing app (Uber or the Uber app).
The assailants were not affiliated with Uber or the Uber entities,
but had obtained Uber decals from the Uber website and affixed
them to their vehicles. The Jane Does’ operative complaint refers to
this means of abducting and assaulting women who are attempting
to use the Uber app as “the fake Uber scheme.” The complaint
alleges the Uber business model created the risk that criminals
would employ this scheme, then failed to protect potential victims
from it. Specifically, the complaint alleges respondents negligently
failed to warn the Jane Does about the fake Uber scheme, failed
to implement additional safety precautions to protect them against
third parties employing the fake Uber scheme, and concealed
instances of sexual assault via the fake Uber scheme while they
continued to advertise Uber as a safe means of transportation for
women. The trial court sustained the demurrer to the operative
complaint without leave to amend and dismissed the complaint
with prejudice.
We affirm. On the facts alleged, the Uber entities were not
in a special relationship with the Jane Does that would give rise
to a duty to protect the Jane Does against third party assaults, or
to warn them about the same. The complaint thus did not allege
actionable nonfeasance. Nor does the complaint allege actionable
misfeasance, because the Uber entities’ alleged actions did not
create the risk that criminals would take advantage of the existence
2
of the Uber app to abduct and rape women trying to use it.
Although it is foreseeable that third parties could abuse the
platform in this way, such crime must be a “necessary component”
of the Uber app or the Uber entities’ actions in order for the Uber
entities to be held liable, absent a special relationship between
the parties. (Sakiyama v. AMF Bowling Centers, Inc. (2003) 110
Cal.App.4th 398, 408 (Sakiyama).) Further, the additional facts
the Jane Does argue they would allege if granted leave to amend
likewise do not reflect misfeasance or nonfeasance giving rise
to the requisite duty to protect, nor do they provide a basis for
a special relationship. The trial court correctly concluded that,
on the facts alleged in the operative complaint, the Uber entities
cannot be held liable for causing or contributing to the Jane Does’
harm.
FACTS AND PROCEEDINGS BELOW
In reviewing a judgment of dismissal after a demurrer,
“we must assume the truth of all facts properly pleaded by the
plaintiffs, as well as those that are judicially noticeable.” (Howard
Jarvis Taxpayers Assn. v. City of La Habra (2001) 25 Cal.4th
809, 814.) The operative complaint and select information of which
we take judicial notice1 provide the following factual background.
1 The Jane Does moved this court to take judicial notice of
various documents filed in Doe v. Uber Technologies, Inc. (N.D.Cal.
May 1, 2020, No. 19-CV-03310-JSC) 2020 WL 2097599, a federal
lawsuit against the Uber entities alleging facts very similar to
those alleged here (the federal Uber action). The plaintiff in the
federal Uber action, a woman sexually assaulted by a criminal
posing as an Uber driver, alleged California law negligence claims
against the Uber entities, claiming, as do the Jane Does here, that
Uber’s business model created the risk of the fake Uber scheme
3
A. The Uber Business Model
The Uber entities operate a technology company that
connects individuals looking for transportation with authorized
drivers. Users request a ride through the Uber app on their
smartphones. The Uber app uses Global Positioning System (GPS)
technology available within one’s smartphone device to identify
the user’s location, as well as a nearby available driver. The user
then meets the driver at an “individually designated pickup
location.” The Uber app also has “ ‘safety features’ ” to help users
identify their authorized driver. When the rider is matched with a
driver, the Uber app provides the rider with the authorized driver’s
“name, picture, and license plate,” as well as a description of the
car. The GPS technology also allows the rider to track their driver’s
progress, so they can see when their authorized driver is nearby.
and that the Uber entities negligently failed to warn or otherwise
protect her. The Jane Does’ request for judicial notice further asks
that we take judicial notice of two decisions of the Public Utilities
Commission of the State of California (the CPUC) regarding the
commission’s investigation of sexual assaults potentially associated
with “ridesharing and new online-enabled transportation services,”
including the Uber app. (Capitalization omitted.) We hereby grant
the motion. (See Evid. Code, § 452, subd. (d) [permitting judicial
notice of “[r]ecords of . . . any court of this state or . . . any court
of record of the United States”] & Taiheiyo Cement U.S.A., Inc. v.
Franchise Tax Bd. (2012) 204 Cal.App.4th 254, 267, fn. 5 [“[j]udicial
notice may be taken of official acts of the executive department
of this state,” including reports of administrative agencies].)
We consider these documents as a proffer identifying potential
additional allegations the Jane Does could include in a further
amended complaint. We also consider the documents from the
federal Uber action in our analysis of the parties’ arguments
regarding the relevance of that action.
4
Uber drivers distinguish themselves from other cars through
the use of an Uber decal. The Uber entities’ “website has a ‘print
at home’ feature where anyone with a computer and a printer can
print out the identifying emblem to affix to any vehicle.” Uber
does not attempt to monitor the use or distribution of decals and
does not retrieve Uber decals from drivers deactivated for any
reason, including those deactivated based on the driver committing
sexual assault.
The Uber entities market Uber as a safe alternative to
drinking and driving. One of the pages on its website advertises
its partnership with Mothers Against Drunk Driving and urges
individuals to use Uber’s service instead of attempting to drive
home after they have been drinking. Uber advertisements depict
young female passengers riding in Uber vehicles alongside slogans
referring to safety.
Uber’s website also has a general “rider safety webpage,”
and includes a paragraph entitled, “Getting a Safe Ride” that reads:
“Safe pickups [¶] The Uber app automatically finds your location
to provide door-to-door service. That means you stay safe and
comfortable wherever you are until your driver arrives.”
B. Uber’s Knowledge of and Reactions to Incidents
of Sexual Assault by Third Parties Posing As
Uber Drivers
The Uber entities “were put on notice as early as November
2014 of the fake uber scheme,” based on reports in numerous
American cities and Canada. This scheme “has been known to
the Uber [entities] as early as 2016 to be occurring at popular
and crowded nightclub/ bar/restaurant locations in and around
Los Angeles.” “[T]he Los Angeles Police Department and
immediately surrounding jurisdictions have contacted [the] Uber
[entities] . . . multiple times to alert [them] of additional victims and
5
the continued perpetration of this fake Uber scheme.” “Uber
passengers have reported sexual misconduct including rapes” in
the Los Angeles area, nationally, and internationally, “to the Uber
[entities’] serious incident unit,” but “the serious incident unit’s
agents are forbidden . . . from routing allegations to police or from
advising victims to seek legal counsel or make their own police
reports.” The Uber entities have been “silencing assault victims
with monetary confidential settlements.” The Uber entities have
been fined for their refusal to report data on sexual assaults to the
CPUC.
C. The Abductions of and Assaults on the Jane Does
As noted, each of the Jane Does was sexually assaulted after
using the Uber app between June 2017 and February 2018.2 On
the nights in question, each Jane Doe used the Uber app to arrange
for a ride home after a night out socializing and “consum[ing]
alcohol” at “popular Los Angeles night spots,” specifically dance
clubs in West Hollywood and downtown Los Angeles. After doing
so, each received confirmation that their authorized Uber driver
was on the way, and the name, picture, and license plate number of
their authorized driver, along with a description of the driver’s car.
Before the authorized Uber drivers arrived, however, other
cars bearing Uber decals pulled up, the drivers of which held
themselves out to be the ride home each Jane Doe had requested
via the Uber app. Two of the Jane Does did not attempt to verify
2 Jane Doe No. 1’s assault occurred on June 18, 2017, Jane
Doe No. 2’s assault occurred on December 30, 2017, and Jane Doe
No. 3’s assault occurred on February 16, 2018. Jane Doe No. 1 and
Jane Doe No. 3 were raped by the same serial rapist. According to
the parties’ briefing, both rapists have since been apprehended.
6
this before getting into the imposter’s car by checking the picture,
license plate number, or car description provided in the Uber app.
One Jane Doe “noticed the license plate did not match” the license
plate number shown in the Uber app, but the imposter driver
convinced her that he had recently crashed his car and “hadn’t had
time to update the app.” Ultimately, each Jane Doe entered a car
driven by a rapist posing as an Uber driver, who abducted and
raped her. None of the sexual predators committing these assaults
was an authorized Uber driver.
In the months before each Jane Doe was assaulted, the
“Los Angeles Police Department and/or the Los Angeles Sheriff’s
Department” contacted the Uber entities and “put [them] on
notice of sexual predators who were posing as, or actual, rideshare
drivers . . . specifically seeking out young[,] inebriated women who
have engaged the Uber [a]pp . . . and were waiting for pick[-]up
within a five-mile radius located in Los Angeles County.” All three
of the Jane Does were abducted in this area, which “includes a
concentrated three block area in West Hollywood” and “downtown
Los Angeles.” The Uber entities “did not immediately cooperate
with law enforcement in the investigation [of Jane Doe No. 3’s
rape,] taking more than seven weeks to respond to search
warrants . . . , which the detective [indicated] . . . was consistent
with the Uber [entities’] . . . prior conduct with the policing agency.”
D. The Jane Does’ Lawsuit
The Jane Does sued the Uber entities. The trial court
sustained the Uber entities’ demurrer to the Jane Does’ first
amended complaint with leave to amend. The Jane Does filed
a second amended complaint (the SAC), the operative complaint
in the action, which alleges negligence and strict product liability
causes of action.
7
Through the SAC, the Jane Does seek to hold Uber liable
for failing to warn them about or implement other measures to
protect them against rapists employing the fake Uber scheme in
the portions of West Hollywood and Los Angeles where the Uber
entities knew rapists had repeatedly implemented the scheme.
The SAC alleges the Uber entities “have not taken . . . any
affirmative precautions to warn Uber users in” these or any
other areas “of the continuous fake Uber sexual assault scheme”
(capitalization omitted), and have not implemented additional
safety features to help Uber app users assure they are entering
the car of their authorized Uber driver.
The SAC presents a theory of liability under which the
Uber entities are negligent not just for failing to properly react
to and protect against incidents of the fake Uber scheme, but also
for affirmatively creating the risk of third parties employing the
fake Uber scheme. Specifically, the SAC alleges that the Uber
business model, when combined with Uber’s safety-focused
marketing and concealment of assaults associated with use of the
Uber app, created this risk. According to the SAC, by continuing
to advertise Uber as safe for young, inebriated women, while at
the same time “hiding” and failing to warn their customers about
numerous reports of fake Uber scheme assaults, the Uber entities
have “lulled” the “public, and in particular women looking for a
safe ride home, . . . into believing that . . . the Uber [a]pp . . .
summons a safe means of transportation,” when in fact using the
Uber app can lead to abduction and rape.
E. The Uber Entities’ Successful Demurrer to the SAC
The Uber entities demurred to the SAC, and the trial
court sustained the demurrer without leave to amend. As to
the negligence cause of action, the court concluded that the SAC
8
does not allege facts sufficient to establish a special relationship
or misfeasance creating the risk that the Jane Does would be
assaulted as they were, and thus could not establish the Uber
entities owed a duty to protect the Jane Does from such an assault.
As to the strict liability cause of action, the court concluded the
Uber app was not a product, and thus a products liability theory
of recovery was not legally viable.
The court ultimately entered judgment dismissing the entire
SAC with prejudice. The Jane Does timely appealed the judgment,
challenging only the court’s ruling as to the negligence cause of
action.
DISCUSSION
In an appeal from a judgment following an order sustaining
a demurrer without leave to amend, we first review de novo
“whether the complaint states facts sufficient to constitute a cause
of action.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 (Blank).)
If not, we then apply an abuse of discretion standard of review to
“decide whether there is a reasonable possibility that the defect
can be cured by amendment: if it can be, the trial court has abused
its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm.” (Ibid.)
Thus, we independently analyze whether the trial court
correctly concluded that the SAC failed to state a negligence cause
of action. The Jane Does argue the court erred in so concluding
because the SAC establishes (1) the Uber entities were in a common
carrier special relationship with the Jane Does, which creates
a duty to protect, (2) the Uber entities were in a contract-based
special relationship with the Jane Does, which creates a duty
to protect, and, (3) even absent a special relationship, the Uber
entities engaged in misfeasance that created a foreseeable risk
of the harm that ultimately befell the Jane Does, and thus the Uber
9
entities can be held liable for failing to protect against such harm.
We address each of these arguments in turn below.
A. The SAC Does Not Allege Facts Supporting
a Duty to Protect the Jane Does From
Third Parties Employing the Fake Uber
Scheme
California courts “have uniformly held” that a “defendant
owes no legal duty to the plaintiff ” if “the defendant has neither
performed an act that increases the risk of injury to the plaintiff nor
sits in a relation to the parties that creates an affirmative duty to
protect the plaintiff from harm.” (Brown v. USA Taekwondo (2021)
11 Cal.5th 204, 216 (Brown).) Thus, “as a general matter, there is
no duty to act to protect others from the conduct of third parties.”
(Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235; see ibid.
[referring to this as the “no-duty-to-protect rule”].) The California
Supreme Court recently reaffirmed this “ ‘general rule’ ” (Brown,
supra, at p. 213), while also recognizing that it is subject to well-
established exceptions. (Id. at pp. 213−214.)
The high court also set forth a “two-step inquiry” for
determining when such exceptions apply and trigger a duty
to protect. (Brown, supra, 11 Cal.5th at p. 209.) The first step
assesses whether there is “a special relationship between the
parties or some other set of circumstances giving rise to an
affirmative duty to protect.” (Ibid.) If either exists, the court
moves on to the second step and considers “whether relevant policy
considerations counsel limiting that duty” (ibid.), looking to the
policy factors identified in Rowland v. Christian (1968) 69 Cal.2d
108, 112–113 for guidance. (Brown, supra, at p. 209.) A court thus
only reaches the Rowland factors once it finds a special relationship
or other circumstances giving rise to a duty to protect are present;
10
the factors are not “a freestanding means of establishing duty.” (Id.
at p. 217.)
The first step in the Brown analysis is dispositive in this case,
in the manner we discuss below.
1. The Uber entities do not have a
duty to protect based on a common
carrier-passenger relationship with
the Jane Does
Relying on an unpublished federal memorandum decision,
Brasseur v. Empire Travel Service, Inc. (9th Cir. Dec. 15, 1995,
No. 94-15905) 1995 WL 746181 (Brasseur), the Jane Does argue
that they had a common carrier-passenger special relationship
with the Uber entities at the time they were abducted, which
created a duty to “ ‘warn[ ] [the Jane Does] of reasonably
foreseeable risks that may be encountered during transportation
or at the terminus.’ ”3 (See Brasseur, supra, 1995 WL 746181 at
p. *1.) Specifically, the Jane Does argue that, at the time they were
abducted, they already had been “accepted as passengers by Uber”
and were waiting for their ride at a designated meeting point.
According to the Jane Does, this, combined with the Uber entities’
“specialized knowledge” about “the [f]ake Uber [s]cheme being
perpetrated in the five-mile radius” of where the Jane Does were
waiting, triggered a common carrier’s duty to protect them. Both
California and federal cases consistently hold that, under California
3 We note that ample California authority regarding common
carrier liability under California law exists to guide us, and that
federal authority is not binding on this court. In any event, as
discussed below, the federal authority the Jane Does cite, like
California case law regarding common carrier liability, does not
support a common carrier relationship or duty to protect on the
facts alleged in the SAC.
11
law, a common carrier relationship exists and a corresponding
“heightened standard [of care] applies to a passenger [while] in
transit” with a common carrier (Churchman v. Bay Area Rapid
Transit Dist. (2019) 39 Cal.App.5th 246, 250 (Churchman)), and,
under certain circumstances, for brief windows of time immediately
before and/or after the passenger is in transit with the carrier. (Id.
at pp. 250–251; accord, Rookard v. Mexicoach (9th Cir. 1982) 680
F.2d 1257, 1260 (Rookard).) This heightened duty of care a common
carrier owes its passenger is a function of the fact that “ ‘[t]he
passenger while in actual progress upon his journey is exposed
to countless hazards, [and] gives himself wholly in charge of
the carrier.’ ” (Falls v. San Francisco etc. R. R. Co. (1893) 97 Cal.
114, 119 (Falls); Brasseur, supra, 1995 WL 746181 at p. *1 [“[t]he
rationale for this heightened standard of care is that during travel
a passenger is exposed to numerous hazards while his or her
freedom of movement is entirely under the control of the carrier”].)
This “rule properly ceases with the reason for it.” (Falls,
supra, 97 Cal. at p. 119.) Thus, although this heightened “duty
of care does not end absolutely when the passenger alights from
carriage” in all instances, once “ ‘the passenger reaches a place
outside the sphere of any activity of the carrier which might
reasonably constitute a mobile or animated hazard to the
passenger” (Brasseur, supra, 1995 WL 746181 at p. *1) and the
passenger is “discharged into a relatively safe space, the hazards
incident to the journey, as well as the carrier’s control over the
passenger, cease to exist,” and no heightened duty of care is owed.
(Ibid.; accord, McGettigan v. Bay Area Rapid Transit Dist. (1997)
57 Cal.App.4th 1011, 1017–1018.) Therefore, the precise duration
of the common carrier-passenger relationship (and corresponding
heightened duty of care) is a function of how long the common
carrier has control over the passenger in a manner associated with
12
being a common carrier—specifically, control by virtue of the
passenger being aboard the common carrier, or control over
the passenger’s exposure to “mobile hazards peculiar to the
transportation service, such as cable cars passing through a
boarding area [citation], or jet blasts from an airplane [citation].”
(Churchman, supra, 39 Cal.App.5th at p. 251.) Accordingly,
“cases . . . [holding] that a carrier does have a duty to warn a
passenger of reasonably foreseeable risks [citation] . . . [citation] . . .
deal with carriers whose passengers were still in their care and
control.” (Rookard, supra, 680 F.2d at p. 1260 [summarizing and
applying California law]; see Brasseur, supra, 1995 WL 746181
at p. *2 [“[b]ecause the hurricane did not present a risk to [the
airplane passenger’s] safety either during her flight, or when
she disembarked, [the defendant airline] had no duty to warn
her that a hurricane might hit Cancun the following day”].)
Here, when the Jane Does were waiting for their respective
summoned Uber drivers, the Uber entities had no control over
the Jane Does’ movements, nor over the environment in which the
Jane Does were waiting.4 The Jane Does disagree, pointing to the
Uber app’s use of a GPS pin that locates an Uber app user who has
summoned a ride and directs the user to a designated location for
pick-up. The Jane Does argue this gives Uber unique knowledge
of and influence over the customer’s movements that justifies
imposing a common carrier heightened duty of care. This stretches
4 The Jane Does do not (and, on the facts alleged, could not)
argue a common carrier heightened duty of care applies on the
basis that the injury alleged derives from “mobile hazards peculiar
to the transportation service.” (Churchman, supra, 39 Cal.App.5th
at p. 251.) We thus focus our analysis on the Uber entities’ level
of control over the Jane Does and their safety at the time of the
abductions.
13
the reasoning underlying the common carrier-passenger special
relationship too far. The ability to direct the Jane Does to a pick-up
location and knowledge about their whereabouts—even when
combined with additional knowledge that the Jane Does were near
a place where other women waiting for an Uber had recently been
abducted—is not akin to passengers “submit[ting] themselves
completely to the carrier’s charge” while riding on a train or bus.
(Orr v. Pacific Southwest Airlines (1989) 208 Cal.App.3d 1467, 1472
(Orr).) Nor is there any allegation that such movement subjected
them to any risk.
Nor does likening the Jane Does to passengers in a train
station or airport waiting to board a common carrier assist the
Jane Does’ common carrier theory of duty. First, on the facts
alleged in the SAC, the Uber entities had less control over the Jane
Does’ safety than a common carrier has over individuals in a station
waiting to board or recently alighted passengers “at the terminus.”
(Brasseur, supra, 1995 WL 746181 at p. *1.) More importantly,
even if the Uber entities had that level of control, the common
carrier’s special duty of care “generally does not apply to a
passenger waiting in, or passing through, a station or terminal.”
(Churchman, supra, 39 Cal.App.5th at p. 250; see Orr, supra,
208 Cal.App.3d at pp. 1472−1474 [no heightened duty where
the plaintiff was injured in a security screening area of airport
terminal]; Robson v. Union Pacific R. R. Co. (1945) 70 Cal.App.2d
759, 761 [“railroad is not an insurer of the safety of its station
premises, but is required to exercise only ordinary care as to
invitees”].) “[B]ecause the passengers’ entry into the carrier’s
station is not characterized by any of such hazards incident to the
journey itself, the carrier at such time and place” does not owe a
heightened common carrier duty of care. (Orr, supra, at p. 1472.)
14
Thus, no federal or California case supports the Jane Does’
contentions that, absent the unique level of control over a plaintiff ’s
safety associated with traveling on a common carrier and/or the
physical hazards of common carrier transportation—neither of
which have been alleged here—a common carrier and a potential
passenger have a special relationship justifying a heightened duty
of care.5
2. The Uber entities do not have a duty to
protect based on a contractual relationship
with the Jane Does
Generally, “a special relationship arises by contract only if
the contract itself imposes a duty” to protect. (McHenry v. Asylum
Entertainment Delaware, LLC (2020) 46 Cal.App.5th 469, 485−486.)
Such a special relationship requires “ ‘a specific promise’ ” in the
contract to “ ‘provide specific protection.’ ” (Bom v. Superior Court
(2020) 44 Cal.App.5th 1, 16.) The Jane Does do not argue that their
contract with the Uber entities contains any express promise to
protect. Rather, they argue that a statement on the Uber website—
namely, that the Uber app offers “[s]afe pickups [¶] . . . you stay
safe and comfortable wherever you are until your driver arrives”—
created an implied contractual obligation to protect the Jane Does
while waiting for their Uber driver.
5 The United States District Court for the District of Northern
California reached the same conclusion in the federal Uber action.
Specifically, it “dismissed [the] [p]laintiff ’s common carrier
negligence claim because [p]laintiff had not plausibly alleged
facts that supported an inference that Uber had a common
carrier / passenger relationship with [p]laintiff at the time of the
assault which warranted a heightened duty of care.” (Doe v. Uber
Technologies, Inc., supra, 2020 WL 2097599 at p. *2.)
15
It is possible for contractual terms to be implied based on
extra-contractual representations under certain circumstances,
depending upon the specificity of the representation at issue,
as well as other factors. (See, e.g., Vallejo Police Officers Assn. v.
City of Vallejo (2017) 15 Cal.App.5th 601, 620 [where there
was “no evidence of any specific promise” in extra-contractual
representations, those representations did not imply terms in
written contract].) The facts alleged are not sufficiently definite
or explicit to constitute a “specific promise” that the Uber
entities would undertake a legal duty to protect from third party
misconduct. (Ibid.) Therefore, the language on the Uber website
on which the Jane Does rely is not an enforceable promise to protect
against third parties while waiting for an Uber driver on a public
street.6
The Jane Does also analogize to premises liability cases
involving quasi-contractual relationships that recognize a
business’s duty to protect potential customers from third party
crime. But such cases involve a plaintiff physically on the
defendant’s property, creating at least an invitee-invitor special
relationship. (See, e.g., Morris v. De La Torre (2005) 36 Cal.4th
6 Because a promise to protect passengers from third party
criminal conduct cannot be implied into the contract between
the Uber entities and the Jane Does, the Jane Does’ reliance on
case law establishing that a contractual relationship continues
“until both parties have waived or fully performed their mutual
obligations” is of no assistance in arguing for a contract-based
duty to protect. (Dayton v. Yellow Cab Co. (1948) 85 Cal.App.2d
740, 744 (Dayton) [because a carrier-passenger contract requires
taxi passengers “to pay their fare,” the carrier-passenger special
relationship was still in place after passengers exited taxi before
paying and affected the duty of care the taxi driver owed during
the altercation that immediately ensued].)
16
260, 271–272 [defendant had a special relationship with
noncustomer plaintiff giving rise to duty to protect plaintiff
against third party attack while in defendant’s business, because
“a special relationship exists between a business proprietor and . . .
its invitees,” italics omitted].) The duty at issue in such cases
thus does not derive from an implied contractual obligation in
the absence of any other special relationship. The Jane Does
also cite to what they characterize as “privity of contract” cases,
which are distinguishable for similar reasons. (See C.A. v.
William S. Hart Union High School Dist. (2012) 53 Cal.4th 861,
878 [discussing extent of school’s responsibility to protect students
against foreseeable harm from third parties, based on special
relationship between school district and its pupils]; Dayton, supra,
85 Cal.App.2d at pp. 743–744 [involving duration of common
carrier special relationship between taxi driver and customer].)
On the facts alleged in the SAC, there is no contract-based special
relationship between the Jane Does and the Uber entities that
could give rise to a duty to protect the Jane Does from third parties.
3. The SAC does not allege misfeasance based
on which the Uber entities could be held
liable for failure to protect against the acts
of the Jane Does’ assailants
a. Misfeasance as a basis for duty to protect
The general rule that one has no duty, absent a special
relationship, to protect others against harm at the hands of
third parties is rooted in the idea that, “[g]enerally, the ‘person
who has not created a peril is not liable in tort merely for failure
to take affirmative action to assist or protect another’ from
that peril.” (Brown, supra, 11 Cal.5th at p. 214, italics added,
quoting Williams v. State of California (1983) 34 Cal.3d 18, 23.)
A necessary corollary to this is that when a defendant has
17
affirmatively “created a peril” that foreseeably leads to the
plaintiff ’s harm (Williams, supra, at p. 23), the defendant can,
even absent a special relationship, be held liable for failing to
also protect the plaintiff from that peril. This scenario does not
represent a true exception to the general rule that there is no
duty to protect. Rather, it involves more than a mere failure
to protect (nonfeasance), and instead involves both misfeasance—
the defendant has “ma[de] the plaintiff ’s position worse, i.e.,
defendant has created a risk”—and the nonfeasance of failing to
protect against that risk once created. (Weirum v. RKP General,
Inc. (1975) 15 Cal.3d 40, 49 (Weirum).)
A seminal case exploring such a situation is Weirum, supra,
15 Cal.3d 40. In Weirum, a “rock radio station with an extensive
teenage audience conducted a contest which rewarded the first
contestant to locate a peripatetic disc jockey. Two minors driving
in separate automobiles attempted to follow the disc jockey’s
automobile to its next stop. In the course of their pursuit, one of
the minors negligently forced a car off the highway, killing its sole
occupant.” (Id. at p. 43.) The court rejected the defendant radio
station’s argument that it was accused of nonfeasance—that is, of
a failure to protect the decedent against the teenagers, something
for which, absent a special relationship, the law does not permit
liability. (Id. at pp. 47−49.) The court explained “this rule has
no application if the plaintiff ’s complaint . . . is grounded upon
an affirmative act of defendant which created an undue risk of
harm”—i.e., misfeasance. (Id. at p. 48.) The court viewed the radio
station’s broadcast as an affirmative act that had “stimulated” the
“reckless conduct by youthful contestants” which “constituted the
hazard to which decedent was exposed.” (Id. at p. 47). Under
those circumstances, the defendant was liable for “creat[ing] . . . an
unreasonable risk of harm” to the decedent, and the court affirmed
18
a jury verdict for plaintiff. (Id. at p. 49.) The Weirum court also
found significant that this reckless conduct was a foreseeable
result of the broadcast, in that “[m]oney and a small measure
of momentary notoriety awaited the swiftest response. It was
foreseeable that defendant’s youthful listeners, finding the prize
had eluded them at one location, would race to arrive first at
the next site and in their haste would disregard the demands
of highway safety.” (Id. at p. 47.)
A key fact in Weirum is that the plaintiff was injured
by third parties doing exactly what the defendant’s conduct
encouraged them to do: speed to the next location of the disc
jockey, whatever the cost. Courts have repeatedly identified this
as a defining feature of Weirum misfeasance. (See Olivia N. v.
National Broadcasting Co., Inc. (1981) 126 Cal.App.3d 488, 496
[Weirum misfeasance occurs only where the defendant actively
“urg[es]” the third party “to act in [the] inherently dangerous
manner” that injured the plaintiff]; accord, Melton v. Boustred
(2010) 183 Cal.App.4th 521, 535 (Melton); Sakiyama, supra, 110
Cal.App.4th at p. 408; McCollum v. CBS, Inc. (1988) 202 Cal.App.3d
989, 1005.)
Sakiyama, supra, 110 Cal.App.4th 398 provides a helpful
counterpoint in understanding the limits of Weirum misfeasance.
In Sakiyama, the plaintiffs were teenagers who had been injured
and the parents of two other teenagers who had been killed in a
single-car crash after leaving an all-night rave party hosted on the
defendant’s premises. (Id. at p. 402.) The record supported that
drug use at such an event was common and was to be anticipated.
Nevertheless, the court noted that “the teenagers did not need to
use drugs to attend the party. [The defendant] did not promote
drug use; in fact, it took numerous steps to discourage and prevent
drug use. And, although the party lasted all night, the attendees
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were not required to stay until they were too tired to drive home.”
(Id. at p. 408.) Thus, unlike in Weirum, the conduct that led to
the teenagers’ injuries and deaths was neither encouraged by the
defendant nor a necessary result of the defendant’s conduct, and
could not constitute misfeasance. (Compare ibid. with Weirum,
supra, 15 Cal.3d at p. 48.) The all-night rave party provided an
opportunity for the teenagers to use drugs and/or stay up all night
before attempting to drive home, but it did not create the risk that
they would do so. Thus, the court found the defendant venue owed
no duty to protect attendees from that risk.
b. The Jane Does’ theory of misfeasance
The Jane Does argue that they have alleged sufficient
Weirum misfeasance by the Uber entities to establish a duty to
protect. They argue the Uber entities did not just fail to protect
or warn the Jane Does, but rather: actively concealed the fake
Uber scheme and instances of sexual assault reported to Uber;
created a rideshare platform that encourages unsafe behavior,
but marketed it as safe; offered a deficient matching system
on the Uber app; and made Uber decals easy to obtain without
keeping track of their use.
To assess the Jane Does’ misfeasance argument, we must
determine whether the SAC alleges actions by the Uber entities
that “ ‘created a “peril,” that is, an unreasonable risk of harm
to others’ ” in the manner present in Weirum, but not present
in Sakiyama. (Melton, supra, 183 Cal.App.4th at p. 533.) The
Jane Does argue that they do, because the Uber business model,
as supported by Uber’s safety-focused marketing and concealment
of sexual assaults, created an opportunity for rapists to stalk their
prey that otherwise would not have existed. Specifically, they
argue, “Uber reshaped the transportation industry to give the
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illusion of safety to women like [the Jane Does] so they would get
into a stranger’s car on the basis of nothing more than an ‘Uber’
decal on the driver’s window, a small picture, and information on
the license plate, make[,] model[,] and color of the supposed Uber
vehicle,” then lulled these women into a further false sense of
security through their marketing and concealment. They further
identify the Uber entities’ alleged “creation of a faulty matching
system and negligent endorsement of a driver (via decals) of the
subject driver” as “malfeasance.” The Jane Does emphasize that,
particularly in the area where they were abducted, it was entirely
foreseeable to the Uber entities that use of the Uber app could lead
to abduction and rape, and that the Uber app and actions of the
Uber entities placed the Jane Does in a worse position in terms
of avoiding this fate.
The “crux of the difference between” misfeasance and
nonfeasance for purposes of assessing a duty to protect is whether
the third-party conduct “ ‘was a necessary component’ of the
[defendant’s] conduct at issue.” (Melton, supra, 183 Cal.App.4th
at p. 534.) That assault and rape by third parties is a foreseeable
result of a defendant’s actions, or that this conduct may not have
occurred absent the defendant’s actions, is insufficient to establish
this. By way of example, it is entirely foreseeable that teenagers
at an all-night rave party might use drugs and/or stay up all night,
then attempt to drive home. Because doing so is not a “necessary
component” of attending such a party, however, Sakiyama
concluded the party did not create a risk thereof, and the party
venue had no duty to protect against it. (Sakiyama, supra, 110
Cal.App.4th at p. 408.) Similarly, when one publicly posts an
unrestricted invitation to an “ ‘out-of-control and dangerously
public’ ” party at one’s residence, it is foreseeable that drunken
attendees could become physically violent and that party guests
21
might be harmed in a way they would not have been, had the party
not taken place and / or been publicly advertised. (Melton, supra,
183 Cal.App.4th at p. 533.) But Melton deemed such foreseeability
and causal connection insufficient to require the party host to
protect against such violence, because “[t]he violence that harmed
plaintiffs [in that case] was not ‘a necessary component’ of [the]
defendant[ ] [host’s] party.” (Id. at p. 535; see ibid. [rejecting idea
that hosting and advertising party in this way constituted “active
conduct that increased the risk of harm to plaintiffs”].)
So too here. The fake Uber scheme may be a foreseeable
result of the Uber business model, and the Jane Does’ assailants
may not have been able to as easily commit their crimes against
the Jane Does, were it not for the Uber app and the Uber business
model. But these connections cannot establish that the harm the
Jane Does suffered is a “necessary component” of the Uber entities’
actions. (Sakiyama, supra, 110 Cal.App.4th at p. 408.) “The
violence that harmed [the Jane Does]”—abduction and rape—“[is]
not ‘a necessary component’ of ” the Uber business model. (See
Melton, supra, 183 Cal.App.4th at p. 535.) Nor does such harm
become a necessary component of the Uber business model because
the Uber entities marketed the Uber app as safe to use, refused
to cooperate with sexual assault investigations, or concealed
sexual assaults related to the use of the app. Even accepting such
allegations as true, the Uber entities still are not alleged to have
“[taken] . . . action to stimulate the criminal conduct” (ibid.), as was
the case in Weirum, where defendants encouraged plaintiffs to drive
as quickly as possible to the designated location. (See Weirum,
supra, 15 Cal.3d at p. 48.) To the contrary, like the defendants
in Sakiyama, the Uber entities made efforts to prevent the type
of conduct that harmed the plaintiffs—namely, they included
matching system features in the Uber app that, if utilized, can
22
thwart efforts like the fake Uber scheme. The conduct based
on which the Jane Does seek to impose liability thus does not
constitute misfeasance that can give rise to a duty to protect.
In arguing to the contrary, the Jane Does read Weirum and
its progeny too broadly and focus too much on whether the rapes
they suffered were a foreseeable result of using the Uber app. But
it is only “[w]here there is a legal basis for imposing a duty—as in
[the] cases of misfeasance or when a special relationship exists—
[that] the court considers the foreseeability of risk from the third
party conduct.” (Melton, supra, 183 Cal.App.4th at p. 532.) Here,
the SAC does not allege such misfeasance. The Jane Does also
focus on the idea that the Uber entities’ alleged actions “place[d]
[the Jane Does] in . . . worse position[s].” Weirum is the source
of this language, but that case goes on to explain that the phrase
is meant to refer to when the defendant has created the risk
that ultimately harms the plaintiff: “[W]hen the defendant is
responsible for making the plaintiff ’s position worse, i.e., [the]
defendant has created a risk.” (Weirum, supra, 15 Cal.3d at p. 49.)
Weirum thus does not stand for the proposition that a defendant
worsening the plaintiff ’s position in the simplest, most literal sense
is alone sufficient to establish misfeasance triggering a duty to
protect. (See Discussion ante, part A.3.a.) Moreover, there are
“many commonplace commercial activities” that provide an
opportunity for, and thus theoretically increase the risk of, criminal
conduct by third parties. (Sakiyama, supra, 110 Cal.App.4th at
p. 409.) For example, bars, restaurants, “New Year’s Eve parties,”
concerts, and college parties all “provide patrons with the
opportunity to drink alcohol, become intoxicated, and then drive.”
(Ibid.) Yet these activities are not treated as misfeasance in cases
where plaintiffs are harmed by a patron’s criminal act of driving
while intoxicated, and California courts have consistently “refused
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to hold business owners and hosts in these situations liable for
negligence.” (Ibid. [collecting cases].) Similarly, in cases against
youth organizations that negligently provide the opportunity for
an adult to molest a child, courts have analyzed the organization’s
liability for resulting harm under a paradigm of nonfeasance
(failure to protect) and special relationships. (See, e.g., Brown,
supra, 11 Cal.5th at p. 210 [liability of organization third party
sexual predators “t[aking] advantage of . . . opportunities to
sexually abuse the young” participants that would not have existed
but for the organizations was premised on nonfeasance and special
relationship, not misfeasance]; accord, Doe v. United States Youth
Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1122 [youth soccer];
Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th
377, 384 [boy scouts], disapproved of on other grounds in Brown,
supra, at pp. 212 & 221.) Thus, that a defendant’s organization
or business creates an opportunity for criminal conduct against
a plaintiff and thereby worsens the plaintiff ’s position does not
render such criminal conduct a necessary component of the
organization’s actions—even when that conduct is foreseeable.
Providing such an opportunity does not constitute misfeasance
triggering a duty to protect.7
7 The district court in the federal Uber action accepted
the idea that the Uber entities’ business model could constitute
misfeasance because it “ ‘made plaintiff ’s position worse’ ” and
“ ‘created a foreseeable risk of harm from the third persons.’ ”
(Doe v. Uber Technologies, Inc., supra, 2020 WL 2097599 at p. *3.)
To the extent the federal Uber action rests on the same alleged
conduct presented in the SAC, we disagree that such actions
“[made] the plaintiff ’s position worse” or created the risk at issue
in the manner necessary to establish a duty to protect under
California law. In concluding to the contrary, the district court in
24
In sum, we conclude that no legal duty arose from the
actions alleged in the SAC, because those actions establish neither
misfeasance, nor a special relationship.
B. The Trial Court Acted Within Its Discretion
in Denying Leave to Amend
When reviewing a ruling sustaining a demurrer without
leave to amend, “we decide whether there is a reasonable possibility
that the defect can be cured by amendment,” and “[t]he burden of
proving such reasonable possibility is squarely on the plaintiff.”
(Blank, supra, 39 Cal.3d at p. 318.)
In their opening brief, the Jane Does “request the ability to
amend their complaint” “if any deficiencies are perceived” therein,
but do not make any effort to explain how they would amend. Only
in their reply brief do the Jane Does point to new allegations they
might include in a further amended complaint. These derive in part
from information “recently . . . declassified in the [f]ederal [Uber]
[a]ction” that is “systemic of [the] Uber[ ] [entities’] practices.”8
Specifically, the Jane Does indicate they would add allegations
(1) that the Uber entities have known for many years about
the federal Uber action, like the Jane Does here, relied on Lugtu v.
California Highway Patrol (2001) 26 Cal.4th 703, 716. But the
conduct deemed to be misfeasance in that case is not analogous to
the conduct at issue here. Namely, in Lugtu, the “plaintiffs’ cause
of action . . . [was] based upon the claim that [a police officer’s]
affirmative conduct . . . in directing [the plaintiff] to stop [his car] in
the center median of the freeway, placed plaintiffs in a dangerous
position and created a serious risk of harm to which they otherwise
would not have been exposed.” (Id. at pp. 716–717.)
8 These facts were the subject of the Jane Does’ request for
judicial notice to this court, which we granted above, and have
taken into account in our foregoing analysis.
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instances of the fake Uber scheme and sexual assaults otherwise
associated with the Uber app; (2) that the Uber entities have been
uncooperative with authorities investigating sexual assaults related
to the Uber app; (3) that “the serial rapists in question in this case
had prior relationships with Uber wherein they obtained the Uber
decals emblazoned on the vehicles that abducted each” Jane Doe;
(4) “concerning [the Uber entities’] failure to request, retrieve
or otherwise cancel said decals, endorsing the decals as safe”;
and (5) more specifically identifying “policies and procedures
of [the Uber entities] negatively conducting [sic] sexual assault
investigations giving rise to serial rapists going undetected by
law enforcement.” These proffered facts largely offer more specific
examples of the general conduct already alleged in the SAC. None
of these additional allegations would change the fundamental
contours of the SAC, which does not support that the Uber entities
had a legally cognizable duty to protect the Jane Does from the
third parties perpetrating the fake Uber scheme.
Therefore, the trial court acted well within its discretion in
denying leave to amend.
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DISPOSITION
The judgment is affirmed. The parties shall bear their own
costs on appeal.
CERTIFIED FOR PUBLICATION.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.
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