Al Shikha v. Lyft, Inc.

320 Cal.Rptr.3d 906

Abdu Lkader AL SHIKHA, Plaintiff and Appellant,

v.LYFT, INC., Defendant and Respondent.

B321882

Court of Appeal, Second District, Division 3.

Filed May 17, 2024

APPEAL from a judgment of the Superior Court of Los Angeles County, Peter A. Hernandez, Judge. Affirmed. (Los Angeles County Super. Ct. No. 20STCV14928)

McLachlan Law and Michael D. McLachlan, Hermosa Beach, for Plaintiff and Appellant.

Horvitz & Levy, Jason R. Litt, Burbank, Rebecca G. Powell; Sheppard Mullin Richter & Hampton, Paul S. Cowie, Menlo Park, Rachel J. Moroski, San Francisco, and Nina Montazeri for Defendant and Respondent.

ADAMS, J.

Abdu Lkader Al Shikha was working as a Lyft driver when a passenger attacked him, stabbing his hand and legs. The attack was sudden and unprovoked. Unbeknownst to Al Shikha, the passenger had a criminal record. Although Lyft conducts criminal background checks on its drivers, it does not similarly screen passengers. Al Shikha sued Lyft for negligence based on the rideshare company’s failure to conduct criminal background checks on all passengers. The trial court granted Lyft’s motion for judgment on the pleadings.

We conclude Al Shikha has not established that Lyft’s legal duty to its drivers extends to conducting criminal background checks on all riders seeking to use the service. We therefore affirm the trial court judgment.

FACTUAL AND PROCEDURAL BACKGROUND¹

In February 2020, Al Shikha was working as a Lyft driver when he accepted a ride request through the Lyft app from passenger Ricky A. Alvarez. During the ride, and without any warning or provocation, Alvarez repeatedly stabbed Al Shikha, causing lacerations to Al Shikha’s left hand and both legs. In April 2020, Al Shikha filed a complaint asserting three causes of action against Lyft: (1) failure to provide workers’ compensation insurance; (2) negligence; and (3) failure to provide a safe place of employment.²

It is undisputed that Public Utilities Code section 5445.2 and Business and Professions Code section 7458 require Lyft to conduct background checks on drivers. The California Public Utilities Commission has issued Lyft a permit to operate as a Transportation Network Company (TNC) in California. Public Utilities Code section 5445.2, subdivision (a)(1), provides that TNCs must conduct, or have a third party conduct, "a local and national criminal background check for each participating driver …. "

Public Utilities Code section 5445.2 prohibits TNCs from employing, contracting with, or retaining drivers with certain convictions. The disqualifying convictions include violent felonies within the meaning of Penal Code section 667.5, human trafficking under Penal Code section 236.1, and several terrorism-related offenses. Other enumerated convictions preclude an individual from driving for a TNC if the offense occurred within the previous seven years. The list includes driving under the influence of alcohol or drugs and several bribery offenses. (Pub. Util. Code, § 5445.2, subd. (a)(2)–(3).) Business and Professions Code section 7458 also requires TNCs to conduct a criminal background check for each "app-based driver," and forbids TNCs from using drivers who have specific prior convictions. (Bus. & Prof. Code, § 7458, subds. (a) & (c).) In addition to the disqualifying convictions listed in Public Utilities Code section 5445.2, the provision adds "serious felonies" (Pen. Code, § 1192.7, subd. (c)) and "any hate crimes" (Pen. Code, § 422.55).

The complaint alleges Alvarez has a "long history of criminal convictions," including "charges for drugs, theft, and illegal weapons charges, all of which are a matter of public record." There are no other allegations about the nature of Alvarez’s convictions or his criminal history.

According to the complaint, Lyft has a "contractual pre-existing relationship" with its passengers, so it has the "opportunity" to conduct background checks on them before they summon a ride. Lyft knows that passengers have committed crimes against drivers for Lyft, Uber, taxicabs, and common carriers. However, Lyft does not conduct "basic, inexpensive public record background checks on passengers to determine whether they pose a risk of harm to drivers (or to obtain consent from drivers that they may be transporting a known criminal)." The complaint asserts that if Lyft had conducted a background check on Alvarez, it would have known of his criminal background, and it "should have advised [Al Shikha] of [the] same."

Lyft moved for judgment on the pleadings on the first two causes of action, asserting it had no legal duty to conduct background checks on passengers and therefore was not negligent. Al Shikha opposed the motion. He argued, in part, that the motion impermissibly asked the court to make factual determinations. He did not seek leave to amend the complaint.

The trial court granted Lyft’s motion. The court concluded Al Shikha could not establish a claim for negligence as a matter of law because Lyft lacked either a statutory or a common law duty to conduct criminal background checks on passengers. The court also determined that the Investigative Consumer Reporting Agencies Act (ICRAA) prohibits Lyft from conducting background checks on passengers. Finally, the court reasoned that Lyft had rebutted the presumption of negligence, thus defeating the claim that it was liable for failing to provide Al Shikha workers’ compensation insurance.

In May 2022, the trial court issued a judgment of dismissal. Al Shikha timely appealed.

DISCUSSION

I. Standard of Review

[1, 2] A judgment on the pleadings in favor of a defendant is appropriate when the complaint fails to allege facts sufficient to state a cause of action. (Code Civ. Proc., § 438, subd. (c)(3)(B)(ii).) "In reviewing an order granting or denying a motion for judgment on the pleadings, we accept as true all material allegations in the complaint" (National Shooting Sports, supra, 5 Cal.5th at pp. 432–433, 235 Cal.Rptr.3d 54, 420 P.3d 870), but not contentions, deductions, or conclusions of law (Adams v. Bank of America, N.A. (2020) 51 Cal. App.5th 666, 670–671, 265 Cal.Rptr.3d 415 (Adams)). We independently review the trial court’s ruling. If the ruling is correct on any applicable theory of law, we will affirm. (Tukes v. Richard (2022) 81 Cal. App.5th 1, 18-19, 296 Cal.Rptr.3d 707.)

II. Request for Judicial Notice

As an initial matter, we consider Al Shikha’s request that we take judicial notice of three documents: (1) Lyft’s Terms of Service, found on its website; (2) safety-related information from Lyft’s website; and (3) Lyft’s Community Safety Report, which Al Shikha obtained from a website of unknown origin. Lyft has opposed the request for judicial notice.

[3, 4] Al Shikha fails to provide a valid statutory basis for this court to take judicial notice of the documents. He cites Evidence Code section 452, subdivision (d), which authorizes us to take judicial notice of court records, but there is no indication these documents are court records. Further, while Al Shikha recognizes that "[w]e may not take judicial notice of the truth of the contents of a website" (LG Chem, Ltd. v. Superior Court (2022) 80 Cal.App.5th 348, 362, fn. 7, 295 Cal.Rptr.3d 661), he nonetheless requests that we take judicial notice of the truth of portions of the documents. For example, he asserts the Terms of Service demonstrate that Lyft "can (and now does) obtain rider consent for background checks." Similarly, he asserts the proffered documents are relevant to demonstrate Lyft’s "knowledge of and general state of mind regarding safety issues …. " However, "[t]he contents of … Web sites … are ‘plainly subject to interpretation and for that reason not subject to judicial notice.’ [Citation.]" (Ragland, v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 194, 147 Cal.Rptr.3d 41.)

[5, 6] We additionally note that Al Shikha neither asked the trial court to take judicial notice of these documents nor presented them in any form below. "Reviewing courts generally do not take judicial notice of evidence not presented to the trial court." (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3, 58 Cal.Rptr.2d 899, 926 P.2d 1085.) "In exceptional circumstances, an appellate court can, but is not required to, take judicial notice of material that was not presented to the trial court in the first instance." (Adams, supra, 51 Cal.App.5th at p. 673, fn. 4, 265 Cal.Rptr.3d 415.) Al Shikha presents no such exceptional circumstances here.

We deny the request for judicial notice.

III. The Duty to Protect Others from Third Party Conduct

[7–9] "To establish a cause of action for negligence, the plaintiff must show that the ‘defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’ [Citation.] Recovery for negligence depends as a threshold matter on the existence of a legal duty of care." (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213, 276 Cal.Rptr.3d 434, 483 P.3d 159 (Brown).) "Whether a duty exists is a question of law to be resolved by the court." (Ibid.)

[10–15] "In general, each person has a duty to act with reasonable care under the circumstances." (Regents of University of California, v. Superior Court, (2018) 4 Cal.5th 607, 619, 230 Cal.Rptr.3d 415, 413 P.3d 656 (Regents).) "However, ‘one owes no duty to control the conduct of another, nor to warn those endangered by such conduct.’ [Citation.]" (Ibid.; accord, Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235, 30 Cal.Rptr.3d 145, 113 P.3d 1159.) While "there is generally no duty to protect others from the conduct of third parties[,] [t]he ‘special relationship’ doctrine is an exception to this general rule." (Regents, at p. 627, 230 Cal.Rptr.3d 415, 413 P.3d 656.) "In a case involving harm caused by a third party, a person may have an affirmative duty to protect the victim of another’s harm if that person is in what the...