FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANE DOE, No. 22-16562
Plaintiff-Appellant, D.C. No.
3:19-cv-03310-
v. JSC
UBER TECHNOLOGIES, INC.; ORDER
RASIER, LLC; RASIER CA, LLC, CERTIFYING
QUESTION TO
Defendants-Appellees. THE SUPREME
COURT OF
CALIFORNIA
Appeal from the United States District Court
for the Northern District of California
Jacqueline S. Corley, District Judge, Presiding
Argued and Submitted November 14, 2023
San Jose, California
Filed January 9, 2024
Before: Susan P. Graber, Richard A. Paez, and Michelle T.
Friedland, Circuit Judges.
Order
2 DOE V. UBER TECHS, INC.
SUMMARY*
Certification Order / California Law
The panel certified the following questions to the
California Supreme Court:
1. What duty of care, if any, does Uber
Technologies, Inc. owe a rideshare
passenger who suffers an assault or other
crime at the hands of an unauthorized
person posing as an Uber driver?
2. If there is a basis for holding that Uber
owed such a duty of care, do the factors
delineated in Rowland v. Christian, 69
Cal. 2d 108 (1968), counsel in favor of
creating an exception to that duty in a
category of cases involving rideshare
companies and customers harmed by
third-party conduct?
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DOE V. UBER TECHS, INC. 3
ORDER
We respectfully ask the California Supreme Court to
answer the certified questions presented below because,
pursuant to California Rule of Court 8.548, we have
concluded that resolution of these questions of California
law “could determine the outcome of a matter pending in
[this] court,” and there is no “controlling precedent.”
This case involves the sexual assault of a rideshare
passenger by an individual posing as an authorized Uber
driver. The issue is whether Uber owed the passenger a duty
of care because it created or contributed to her risk of sexual
assault at the hands of an imposter driver.
For reasons we discuss below, we certify the following
questions:
1. What duty of care, if any, does Uber owe
a rideshare passenger who suffers an
assault or other crime at the hands of an
unauthorized person posing as an Uber
driver?
2. If there is a basis for holding that Uber
owed such a duty of care, do the Rowland
factors counsel in favor of creating an
exception to that duty in a category of
cases involving rideshare companies and
customers harmed by third-party
conduct?
We recognize that our phrasing of these questions does not
restrict the court’s consideration of the issues involved and
4 DOE V. UBER TECHS, INC.
that the court may rephrase the questions as it sees fit. We
agree to accept the court’s answers.
I.
We briefly summarize the material facts. In August
2018, Plaintiff Jane Doe requested that her boyfriend call her
an Uber remotely because her phone had low battery.
Plaintiff’s phone, however, lost its charge, and she did not
receive from her boyfriend the information identifying the
authorized vehicle. Plaintiff then entered a car displaying an
Uber decal that stopped in front of her. In fact, the driver—
Brandon Sherman—was no longer employed by Uber,
having been previously terminated for sexually assaulting
two female passengers. Nonetheless, he retained and
displayed the Uber decals. Sherman proceeded to kidnap and
sexually assault Plaintiff, for which he was eventually
prosecuted and convicted.
Plaintiff later filed this lawsuit against Uber
Technologies, Inc., Rasier, LLC, and Rasier CA, LLC
(collectively, “Uber”), alleging that the company was both
vicariously liable for the misconduct of its ostensible agent
and negligent in failing to keep its riders safe. At the motion
to dismiss stage, the district court dismissed the vicarious
liability claims but allowed the negligence claims to
proceed. The district court ultimately granted Uber’s motion
for summary judgment on the negligence claims, holding
that the negligence theory relevant here had been
“foreclosed” by a recent California Court of Appeals case,
Jane Doe No. 1 v. Uber Techs., Inc., 79 Cal. App. 5th 410
(2022). The district court concluded based on Jane Doe No.
1 that Uber did not owe Plaintiff a duty of care under
California law.
DOE V. UBER TECHS, INC. 5
“Certification is warranted if there is no controlling
precedent and the California Supreme Court’s decision
could determine the outcome of a matter pending in our
court.” Kuciemba v. Victory Woodworks, Inc., 31 F.4th
1268, 1271 (9th Cir. 2022), certified question answered, 14
Cal. 5th 993 (2023). This appeal “not only meets both
criteria, but also presents issues of significant public
importance for the State of California.” Id. In particular, the
California Supreme Court’s answers to the questions
presented above will clarify the scope of a merchant’s
liability in tort with respect to customers who experience
foreseeable injury due to third-party conduct. This decision
will have especially profound implications for online
platform companies, including but not limited to those that,
like Uber, provide ridesharing services. In fact, as we note
further below, the answers to our questions will directly
impact a large number of cases currently pending before
state and federal courts in California.
A.
“When interpreting state law, we are bound to follow the
decisions of the state’s highest court, and when the state
supreme court has not spoken on an issue, we must
determine what result the court would reach based on state
appellate court opinions, statutes and treatises.” Mudpie, Inc.
v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th Cir.
2021) (quoting Diaz v. Kubler Corp., 785 F.3d 1326, 1329
(9th Cir. 2015)). “Decisions of the California Supreme
Court, including reasoned dicta, are binding on us as to
California law.” Muniz v. United Parcel Serv., Inc., 738 F.3d
214, 219 (9th Cir. 2013). By contrast, decisions of the
California Courts of Appeal “are persuasive but do not bind
each other or us.” Id. Still, “in the absence of convincing
evidence that the highest court of the state would decide
6 DOE V. UBER TECHS, INC.
differently, a federal court is obligated to follow the
decisions of the state’s intermediate courts.” In re Kirkland,
915 F.2d 1236, 1238 (9th Cir. 1990) (internal quotation
marks and citation omitted).
To begin, Section 1714(a) of the California Civil Code
provides the “general rule” of duty in California:
Everyone is responsible, not only for the
result of his or her willful acts, but also for an
injury occasioned to another by his or her
want of ordinary care or skill in the
management of his or her property or person,
except so far as the latter has, willfully or by
want of ordinary care, brought the injury
upon himself or herself.
This duty, though broad, has important limits. In particular,
it “imposes a general duty of care on a defendant only when
it is the defendant who has created a risk of harm to the
plaintiff, including when the defendant is responsible for
making the plaintiff’s position worse.” Kuciemba v. Victory
Woodworks, Inc., 14 Cal. 5th 993, 1016 (2023) (cleaned up)
(emphasis added) (quoting Brown v. USA Taekwondo, 11
Cal. 5th 204, 214 (2021)).
A corollary of this misfeasance principle is that the law
“does not impose the same duty on a defendant who did not
contribute to the risk that the plaintiff would suffer the harm
alleged.” Id. (quoting Brown, 11 Cal. 5th at 214).1 Thus,
1
We note that the California Supreme Court has recently called into
question the use of the term misfeasance. See Brown, 11 Cal. 5th at 215
n.6 (“Although our precedents have sometimes referred to the distinction
between ‘misfeasance’ and ‘nonfeasance,’ we now understand this
DOE V. UBER TECHS, INC. 7
when a defendant has “create[d] or contribute[d] to the
[plaintiff’s] risk of [harm],” the defendant owes the plaintiff
a duty of care under Section 1714. Id. at 1017. This includes
instances of “liability premised on the conduct of a third
party,” at least where the “defendant had a duty to prevent
injuries due to its own conduct or possessory control.” Id. at
1018 (emphasis omitted).2
One California court has recently considered whether
Uber owes a duty of care under Section 1714 to the victims
of sexual assaults committed by imposter drivers. In Jane
Doe No. 1 v. Uber Techs., Inc., 79 Cal. App. 5th 410 (2022),
the plaintiffs—women who had been abducted and sexually
assaulted by assailants posing as authorized Uber drivers—
brought negligence claims against Uber, arguing that the
company had created or contributed to their risk of harm and
thus owed them a duty of care under Section 1714. The court
rejected this argument, concluding that Uber did not owe the
plaintiffs a duty of care because they failed to “allege[]
actions by the Uber entities that created a peril, that is, an
unreasonable risk of harm to others.” Id. at 426 (internal
quotation marks and citation omitted). As the court
observed, “[a]lthough 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
terminology to be imprecise and prone to misinterpretation.”). We use
the term cautiously here to capture those situations where one’s
affirmative conduct creates or contributes to the risk of harm to another,
such that a duty of care arises under California law.
2
The resulting duty of care can be narrowed or excepted “when
supported by compelling policy considerations,” Kuciemba, 14 Cal. 5th
at 1021, as determined upon analysis of the factors delineated in
Rowland v. Christian, 69 Cal. 2d 108 (1968).
8 DOE V. UBER TECHS, INC.
a special relationship between the parties.” Id. at 415
(emphasis added). Because “[t]he violence that harmed the
Jane Does—abduction and rape—is not a necessary
component of the Uber business model,” the court held Uber
owed no duty of care to the Jane Does. Id. at 427–28. The
California Supreme Court later declined to review or
depublish the decision.
Relying in significant part on Jane Doe No. 1, the district
court determined that Uber did not owe Plaintiff a duty of
care. See Doe v. Uber Techs., Inc., No. 19-CV-03310-JSC,
2022 WL 4281363, at *2 (N.D. Cal. Sept. 15, 2022)
(concluding that each of Plaintiff’s legal theories was
“foreclosed” by Jane Doe No. 1). Specifically, the court
adopted and applied Jane Doe No. 1’s “necessary
component” test, determining that none of Plaintiff’s various
legal theories survived. Id. at *4. As a result, “even drawing
all reasonable inferences from the evidence in Plaintiff’s
favor, Uber did not have a duty under California law to
Plaintiff.” Id.
While this appeal was pending, however, the California
Supreme Court decided Kuciemba v. Victory Woodworks,
Inc., 14 Cal. 5th 993 (2023), a case that calls into question
whether the court would decide the issue presented in Jane
Doe No. 1 similarly. In Kuciemba, the defendant had
violated a county health order by transferring employees
who had been exposed to COVID-19 to a different worksite.
As a result, an employee had contracted COVID-19, which
he later transmitted to his wife. The question presented in
Kuciemba was whether the defendant owed the employee’s
wife a duty of care under Section 1714 because it had created
or contributed to her risk of harm.
DOE V. UBER TECHS, INC. 9
The Kuciemba court concluded that the defendant did
owe the employee’s wife a duty of care because it had
“created a risk of harm by violating a county health order
designed to limit the spread of COVID-19.” Id. at 1018.
More precisely, the plaintiffs had plausibly alleged that “[the
employee’s wife] was harmed by [the defendant’s] own
misconduct in transferring potentially infected workers to
[the employee’s] jobsite.” Id. at 1017. Thus, the court
concluded that the plaintiffs’ allegations “raise[d] a claim
that [the defendant] violated its obligation ‘to exercise due
care in [its] own actions so as not to create an unreasonable
risk of injury to others.’” Id. at 1018 (citing Lugtu v. Cal.
Highway Patrol, 26 Cal. 4th 703, 716 (2001)). “The fact that
the alleged violation resulted in injury beyond the
workplace, when the contagion was spread by an innocent
third party, [did] not change the analysis.” Id.
This analysis appears to conflict with the “necessary
component” test applied in Jane Doe No. 1. Although the
plaintiffs in Kuciemba alleged that the defendant had created
the wife’s risk of harm, the California Supreme Court did not
apply a “necessary component” test to the defendant’s
conduct. Id at 1017. Instead, the court expressly stated that
the “proper question . . . [was] whether the defendant’s
‘entire conduct created a risk of harm’ to the plaintiff.” Id.
(quoting Brown, 11 Cal. 5th at 215 n.6). Moreover, it did not
matter that the defendant was not the “immediate cause” of
the plaintiff’s harm, for an “exclusive focus on causation in
this context [was] inconsistent with [the court’s] case law.”
Id. The court accordingly rejected arguments that the
defendant needed to have “created the virus itself to owe a
duty of care” or “use[d] the . . . virus in its business or
obtain[ed] any commercial benefit from it.” Id. at 1019. Such
arguments did not “exempt [the defendant] from the default
10 DOE V. UBER TECHS, INC.
duty to use due care in its operations to avoid foreseeable
injuries,” including the virus’s transmission from an
employee to his household. Id.
In addition, and further increasing our doubt that the
California Supreme Court would agree with the analysis in
Jane Doe No. 1, we are aware of no other California court
that has followed that decision’s reasoning. In fact, the only
court to have considered the decision at all has declared that
the “necessary component” test’s application is
unconvincing. See Hacala v. Bird Rides, Inc., 90 Cal. App.
5th 292, 318 n.11 (2023) (observing the court was “not
convinced that [the “necessary component” test] is relevant
to the first step of the duty inquiry” (citation omitted)).
In summary, no “controlling precedent” resolves
whether Uber owed Plaintiff a duty of care, and we are in
doubt as to the answer the California Supreme Court would
give to this important question of California law. Moreover,
and by extension, no California court has yet considered
whether public policy favors creating an exception to such a
duty under a Rowland analysis. The ultimate answers to
these questions, however, will have significant economic
and policy impacts on the State of California. They therefore
readily meet the “high standard for certification” this court
has previously required. Gantner v. PG&E Corp., 26 F.4th
1085, 1090 (9th Cir. 2022); see also Kremen v. Cohen, 325
F.3d 1035, 1037 (9th Cir. 2003) (observing that certification
is invoked “only after careful consideration” and is “reserved
for state law questions that present significant issues”).
Indeed, as noted above, this case will broadly clarify the
scope of a merchant’s liability in tort with respect to
customers who experience foreseeable injury as a result of
third-party conduct. In fact, a remarkable number of pending
cases—coordinated in federal multi-district litigation
DOE V. UBER TECHS, INC. 11
(MDL) and California Judicial Council Coordination
Proceedings (JCCPs)—will be directly affected by the
answers to our questions. See In re Uber Techs., Inc.,
Passenger Sexual Assault Litig., No. MDL 3084, 2023 WL
6456588, at *1 (J.P.M.L. Oct. 4, 2023) (“Uber MDL”)
(MDL before the Northern District of California involving
plaintiffs who allege that “Uber failed to implement
appropriate safety precautions to protect passengers, and that
plaintiffs suffered sexual assault or harassment as a result”);3
Order Granting Petition for Coordination and Request for a
Stay at 2, In re: Uber Sexual Assault Cases, No.
CJC21005188 (Cal. Super. Ct. Dec. 9, 2021) (“Uber JCCP”)
(coordinating “actions aris[ing] out of Plaintiffs’ use of the
Uber app resulting in alleged sexual assault . . . by their Uber
driver”);4 Court’s Ruling and Order re: Petition for
Coordination at 2, In re: Lyft Assault Cases, No.
CJC20005061 (Cal. Super. Ct. Jan. 8, 2020) (“Lyft JCCP”)
(coordinating actions where “Plaintiffs were Lyft passengers
who were sexually assaulted by sexual predators driving for
Lyft”).5 We thus conclude that “the spirit of comity and
federalism dictates that California’s courts be offered the
3
The Uber MDL originally consisted of 22 actions. As of December 1,
2023, the MDL consisted of at least 182 actions. Further, and as
recognized by the Judicial Panel in its original order, a significant
number of these actions arise out of California and will thus be
determined according to California state law. See In re Uber Techs., Inc.,
Passenger Sexual Assault Litig., No. MDL 3084, at *2 (observing that
62 of the 79 actions initially noticed by the Judicial Panel when rendering
its order were pending in the Northern District of California).
4
The Uber JCCP originally consisted of 86 cases. As of September 27,
2023, the JCCP consisted of at least 234 cases.
5
The Lyft JCCP originally consisted of 15 actions. Like the Uber MDL
and Uber JCCP, it has continued to accumulate add-on cases.
12 DOE V. UBER TECHS, INC.
opportunity to answer [the certified questions] . . . in the
first instance.” Kuciemba, 31 F.4th at 1273 (internal
quotation marks and citation omitted).
B.
In addition, “[r]esolving [these questions] will dispose of
this appeal.” Id. As discussed above, the district court
concluded that, “under [Jane Doe No. 1], even drawing all
reasonable inferences from the evidence in Plaintiff’s favor,
Uber did not have a duty under California law to Plaintiff.”
Doe, No. 19-CV-03310-JSC, 2022 WL 4281363, at *4. If
this holding was correct, the district court’s ruling on Uber’s
motion for summary judgment would likely be affirmed. If
this holding was not correct, the district court’s ruling must
be reversed, and the suit allowed to proceed. Thus, the
answers given by the California Supreme Court will dispose
of this appeal currently pending before the Ninth Circuit. We
respectfully request that the court answer the questions
presented in this order.
III.
The names and addresses of counsel are:
For Plaintiff-Appellant Jane Doe: Matthew D. Davis,
Sara M. Peters, Andrew P. McDevitt, Walkup, Melodia,
Kelly & Schoenberger, 650 California Street, 26th Floor,
San Francisco, CA 94108; Tiffany J. Gates, Law Offices of
Tiffany J. Gates, PMB 406, 3940 Broad Street, Suite 7, San
Luis Obispo, CA 93401.
For Defendants-Appellees Uber Technologies, Inc.,
Rasier, LLC, and Rasier CA, LLC: Julie L. Hussey, Perkins
Coie LLP, 11452 El Camino Real, Suite 300, San Diego, CA
92130; Gregory F. Miller, Perkins Coie LLP, 1201 Third
Avenue, Suite 4900, Seattle, WA 98101.
DOE V. UBER TECHS, INC. 13
Plaintiff-Appellant Jane Doe should be deemed the
petitioner if the California Supreme Court agrees to consider
these questions. See Cal. R. Ct. 8.548(b)(1).
IV.
The Clerk of this court is hereby directed to file in the
California Supreme Court, under official seal of the United
States Court of Appeals for the Ninth Circuit, copies of all
relevant briefs and excerpts of record, and an original and
ten copies of the request with a certification of service on the
parties, pursuant to California Rules of Court 8.548(c) and
(d).
This case is withdrawn from submission. Further
proceedings in this case before our court are stayed pending
final action by the California Supreme Court. The Clerk is
directed to administratively close this docket, pending
further order. The parties shall notify this court within
fourteen days of the California Supreme Court’s acceptance
or rejection of certification and, if certification is accepted,
within fourteen days of the California Supreme Court’s
issuance of a decision.
IT IS SO ORDERED.