Ride sharing service has no duty to perform background checks on all potential riders (Shikha v. Lyft)

California's Second District, Division Three, has ruled the general duty of due care one owes to another does not extend to include a duty owed by ride-share platforms to its drivers to perform "background checks" on all passengers. (Shikha v. Lyft (May 17, 2024, B321882.)

Writing for the court, Justice Adams summarized the factual and procedural background succinctly:

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. (Id., pp. 2-3.)

The Second District explained there was no justification for imposing such a duty despite the general rule that all persons owe a duty of due care to others to act reasonably. (See, e.g., Civil Code section 1714.1.)   As the Second District opinion teaches, the statutory duty to verify the criminal record of a driver does not extend to doing so for passengers. As to any common-law duty, Shikha found no duty was owed to its own drivers even though Lyft was admittedly in a "special relationship" with these persons.  This conclusion required analysis of the factors enunciated by the Supreme Court in 1969's Rowland v. Christian, including the crucial factor of foreseeability:

To depart from the general principle that all persons owe a duty of care to avoid injuring others . . . ‘involves the balancing of a number of considerations’: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ [Citation.]” (Brown, supra, 11 Cal.5th at p. 217, citing Rowland, supra, 69 Cal.2d at pp. 112– 113; accord, Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1021 (Kuciemba).)  We consider the Rowland factors at “ ‘a relatively broad level of factual generality.’ [Citation.]” [Citation.] . . . Before analyzing the Rowland factors, we must identify the specific duty Al Shikha asserts Lyft should undertake. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214 (Castaneda).)  The complaint alleges Lyft has a duty to 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).” On appeal, Al Shikha argues Lyft is required to “either warn drivers about riders with serious criminal histories[ ] or otherwise exclude such riders from its network.” 

“ ‘The most important factor to consider in determining whether to create an exception to the general duty to exercise ordinary care . . . is whether the injury in question was foreseeable.’ [Citations.]” (Regents, supra, 4 Cal.5th at p. 629.) In assessing the Rowland factors in cases involving a defendant’s duty to prevent third party criminal conduct, courts have employed a “sliding-scale balancing formula.” [Citation.]  (Id., pp. 8-10.)

Discussing cases involving the duty to prevent the criminal acts of third parties, such as Ann M. v. Pacific Plaza v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666, the Second District explained that in deciding whether to impose a duty of due care, the "burden" of preventing the plaintiff's harm must be balanced against the effectiveness of the proposed precautions.  Here, this analysis indicated no duty of due care was owed given the proposed precaution (background checks) was both burdensome and of "dubious" effectiveness:

Al Shikha contends conducting criminal background checks on all potential rideshare passengers would entail minimal costs and would not be highly burdensome. Lyft, in contrast, asserts the obligation would impose significant financial and social burdens. Lyft argues screening each passenger would require a “huge and unwieldy infrastructure”; that it would expose Lyft to liability because there is no guarantee it would successfully identify people inclined to violence; it would be impossible for passengers to download and sign up for the app at the time a ride is needed; it would burden those with criminal histories who are not inclined to violence but still need transportation; it would unfairly discriminate against broad segments of the population; it would have an “unfair or even unlawful[ly] discriminatory effect on minorities and marginalized populations”; and it would conflict with the strong public policy of maintaining consumer privacy. As the court determined in Castaneda, we similarly conclude here that conducting criminal background checks on all rideshare passengers would be “a burdensome, dubiously effective and socially questionable obligation . . . .” (Castaneda, supra, 41 Cal.4th at p. 1217.) (Id., p. 17.)

The Shikha  court noted that not only did plaintiff fail to provide any cogent argument as to why and how a background check would prevent future injuries, but logic dictated background checks cast a very wide net, as nearly one in three adult Californians have an arrest record. (Id., p. 19.)

It should also be noted Shikha discussed the recent case of Kuciemba v. Victory Woodwork, involving the supposed duty owed by a landowner to the spouse of someone working on the land to prevent the worker's exposure to COVID-19.  The  California Supreme Court unanimously held the spouse's was limited to a workers compensation remedy.

Of course, plaintiff in Shikha argued there was a "failure to warn" of the potential harm from the violent passenger.  However, in Moses v. McKeever a visitor to a condo similarly argued they were owed the duty to be "warned" about a defect in the HOA's common area because such an injury to those entering and exiting the condo was "foreseeable."  However, the appellate court found there was no duty owed by an individual owner or tenant to warn of defects in the HOA's common area.

Analysis

When looking at both practicalities and public policy, it appears the result in Shikha could not have been otherwise.  Indeed, if the duty plaintiff sought to impose were imposed on ride-sharing services, a whole host of persons who do not have access to their own vehicle could potentially be barred from using these services.  This includes not only convicted felons but also, more broadly, those who have been arrested for a wide variety of offenses even if not ultimately charged or convicted.

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Opinion: Disrupting a University is an attack on our civilization

In his masterpiece Civilisation: A Personal View by Kenneth Clark, a 13-part television series, Mr. Clark stands in front of the Notre Dame Cathedral and says, essentially, that if even one cannot define civilization, one knows it when one sees it.  He could have easily stood in front of the Imperial Palace in Japan, the Opera House in Sydney, Angkor Wat in Cambodia, or Corcovado in Rio — for when we see something that mankind has built, something which requires both creativity, struggle, and, indeed, human genius, we know that it represents civilization in all its flaws and grandeur.

In the past few days, we have all seen students and others assaulted and even tasered, windows broken, classes and graduations canceled, and sheer hate against fellow humans based simply upon their religion and/or race.  These actions are in violation of not only University Codes of Conduct but also state and Federal laws, and, of course, the Constitutional rights of the persons against whom these “protesters” seek to bar from University campuses.

At a minimum, these spoiled and ignorant undergraduates should be arrested and, indeed, expelled and not merely suspended.  Faculty who have joined them in their hate and the accompanying attempts to shut down learning should similarly be arrested if they have violated the law and then fired.  This should occur after a public and televised hearing, not only to preserve the right to due process but also so that we may see what each individual has done to set back civilization and take us back in time to a more brutal, selfish, and hate-filled past.

No University can survive as a University with students who call for the genocide of the Jewish people, support Hamas and its rape of women and murder of children in front of their parents (and vice versa), and, indeed, who seem oblivious to the fact that their fellow Americans are still being held hostage by Hamas.

Indeed, no civilization can withstand such actions unless they are condemned in the strongest terms.

The rejoinder, of course, is that within the hate and fascist attempts to shut down other people’s points of view, there is some sort of “point” being made — a claim belied by the fact that no one should listen to anyone who attempts to occupy the public square to the exclusion of other voices.  In our common law tradition, the concept of forfeiture is relevant to both the relinquishment of rights and the concept of equity. Anyone attacking civilization forfeits any chance to change our mind.

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Bui v. Ky: Spouse of candidate not “limited purpose public figure” for purposes of defamation law

 

California’s Fourth District, Division Three, has found the spouse of someone running for office is not automatically considered a “limited purpose public figure” for defamation law, meaning the plaintiff does not have to prove “malice” to prevail. (Bui v. Ky (May 8, 2024) G062338.)  Writing for the majority, Justice Delaney explained the statements at issue:

The full scope of actions allegedly engaged in by defendants were specified in the complaint as follows: “On or about February 13, 2022, Defendant [Nam] interviewed [Ngo] on his YouTube channel. During that interview Defendants said and implied that they knew the family of [plaintiff], that she [(plaintiff)] was the daughter of a Commander of the Communist Party regime, [and] that her husband’s family and relatives were all communists. Defendants identified [plaintiff’s] father as ‘Vu Thanh’, a high ranking communist leader, a Commander, and published several photos of an older man in a communist uniform, confirmed by Defendant NGO KY as [plaintiff’s] father. Defendants further claimed that during the 2022 Tet parade, that [plaintiff] and several friends all wore red with yellow hats, just like the communist regime’s flag, and that they danced and played communist music all along Bolsa Ave.” According to the complaint, these statements were false. It elaborated: “[Plaintiff’s] father was a civil engineer who retired in 2000. He never participated in the military. The man in uniform photo does not show [plaintiff’s] father. [Plaintiff] never participated or was involved with the Communist Party. [Plaintiff] wore a red dress, symbolic of the Lunar new year, in the Tet parade. The music played was Vietnamese pop music for the young people to dance to. It was not communist music.” (Id., p. 3.)

Plaintiff brought a Special Motion to Strike based upon Code of Civil Procedure section 425.16, which permits a defendant to challenge a complaint — by providing evidence such as written declarations —  if it involves certain “protected activity” under the First Amendment and the defense shows the plaintiff can not show they will prevail.  The public policy underlying this motion is to provide a summary proceed to dispose of Strategic Lawsuits Against Public Participation or "SLAPP" suits:

“The Legislature enacted section 425.16 in response to ‘a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’” (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619.) The special motion to strike provided for in the statute is “‘intended to resolve quickly and relatively inexpensively meritless lawsuits that threaten free speech on matters of public interest.’” (Ibid.) By legislative direction, the statute is to “be construed broadly.” (§ 425.16, subd. (a).) “Litigation of an anti-SLAPP motion involves a two-step process. First, ‘the moving defendant bears the burden of establishing that the challenged allegations or claims “aris[e] from” protected activity in which the defendant has engaged.’” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).) The statute sets forth the four categories of protected activity. (§ 425.16, subd. (e).) “Second, for each claim that does arise from protected activity, the plaintiff must show the claim has ‘at least “minimal merit.”’” (Bonni, supra, 11 Cal.5th at p. 1009.) This step of the anti-SLAPP analysis “has been described as a summaryj udgment-like procedure. [Citation.] The court determines whether ‘“the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment.”’ [Citation.] The plaintiff ‘“may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.”’ [Citation.] The defendant may submit evidence in support of its motion. [Citation.]  (Id., pp. 9-10.)

Judge Lee of the Orange County Superior Court granted the motion to strike and the plaintiff appealed.  The appellate court upheld the grant as to the claim for emotional distress, as the motion and opposition showed the anti-SLAPP statute applied and that plainiff's claim lacked merit.  

However, the grant of the Special Motion to Strike was reversed as to the defamation claim.  The Fourth District agreed with defendant that the anti-SLAPP law applied because the election involved the “public interest,” but found the Special Motion to Strike should have been denied as plaintiff had demonstrated her defamation claim had merit and she indeed might prevail.  

This holding was based in large part upon a rejection of defendant’s claim that plaintiff was a public figure for the limited purpose of the candidacy of her husband and, therefore, under New York Times v. Sullivan, had to show “actual malice” on the part of the defendant to prevail.  

The Bui opinion therefore teaches that whether a spouse is a “public figure” depends on the facts and not all spouses of candidates meet this test:

Where we diverge from defendants’ proffered analysis is the next step, which concerns plaintiff’s involvement in the debate. From defendants’ perspective, “[a] candidate does not run in isolation; in making [the decision to run for office] he or she brings the candidate’s family into the public eye.” To the extent this is an urge for us to find any political candidate’s family members to be limited purpose public figures simply by reason of the candidate’s choice to run for public office, we decline to so hold. Defendants do not point us to any authority for such a broad sweeping rule.  Moreover, doing so would effectively turn family members of a political candidate, including children, into public figures through no purposeful action of their own. The Supreme Court has cautioned that the finding of such involuntary public figure status “must be exceedingly rare.” (Gertz, supra, 418 U.S. at p. 345.) We find no justification for the families of political candidates, generally, to be one of those “exceedingly rare” instances. (Id., p. 13; emphasis added and footnote and citations omitted.)

Analysis 

The unstated context of this opinion is the fact that many in the Vietnamese-American community remain opposed to erasing the horrors of the communist regime in Vietnam that has ruled the country since the invasion of South Vietnam by North Vietnam following the withdrawal of United States forces.  The allegation that someone has cooperated with this murderous regime is considered highly inflammatory and therefore highly defamatory to those who risked their lives to escape Vietnam. 

 

The Fourth District made the right call here: a rule that a family member of a political candidate is a political figure simply because they are related to the candidate would greatly expand the concept of who is and is not a “public figure” and, therefore, must meet a much higher bar to prove defamation.  

This, of course, comports with public policy, as such 1) encourages candidacy for political office, and 2) discourages the making of false statements as to the family of a candidate.

Finally, this case again shows the importance of knowing when and when not to file a Special Motion to Strike as opposed to simply filing an ordinary demurrer challenging the complaint on its face.  Unlike a demurrer, a Special Motion to Strikeis is decided upon evidence, and not simply the language in the complaint, and in many circumstances, this is a great advantage to the moving defendant.  However, such a motion is also more "high stakes" as, unlike a demurrer, under section 426.15 attorney fees may be awarded to the prevailing party upon a Special Motion to Strike.

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