Opinion
CV 22-3084 DSF (JCx)
2023-02-02
Salomes Monik Rengifo JACKSON, et al., Plaintiffs, v. AIRBNB, INC., a Delaware Corporation; Snap, Inc., a Delaware corporation, etc., et al., Defendants.
Frank J. Polek, Polek Law, San Diego, CA, Jasmine O.M. Rand, Pro Hac Vice, Rand Law LLC, Miami, FL, for Plaintiffs. Damali A. Taylor, O'Melveny and Myers LLP, San Francisco, CA, Dawn Sestito, Jennifer Dawson Cardelus, O'Melveny and Myers LLP, Los Angeles, CA, for Defendant Airbnb, Inc.
Frank J. Polek, Polek Law, San Diego, CA, Jasmine O.M. Rand, Pro Hac Vice, Rand Law LLC, Miami, FL, for Plaintiffs. Damali A. Taylor, O'Melveny and Myers LLP, San Francisco, CA, Dawn Sestito, Jennifer Dawson Cardelus, O'Melveny and Myers LLP, Los Angeles, CA, for Defendant Airbnb, Inc. ORDER GRANTING AIRBNB, INC.'S MOTION TO DISMISS (Dkt. 41) Dale S. Fischer, United States District Judge
Airbnb, Inc. moves to dismiss the First Amended Complaint. Plaintiffs oppose. Dkt. 42 (Opp'n). For the reasons stated below, Airbnb's motion to dismiss is GRANTED.
I. Background
On May 18, 2020, seventeen-year-old Michael McGowan shot and killed seventeen-year-old Giselle Jackson Rengifo at an Airbnb, Inc. rental property in Miami-Dade County, Florida (subject property) where both were guests and invitees. Dkt 39 (FAC) ¶ 7. McGowan and other minors had been at the subject property for "several days" prior, "openly engaging in criminal activity," "partying," drinking, doing drugs, and "maintaining weapons." Id. ¶ 8.
On May 5, 2022, Plaintiffs filed this action alleging claims of negligence, gross negligence, and products liability against Airbnb. Dkt. 1-1 at 12-14. The Court granted a motion to dismiss these claims, finding that Airbnb did not owe the duty required to sustain a negligence claim and that Airbnb is a marketplace, not a product. Dkt. 34 (Order).
Plaintiffs' FAC continues to assert claims of negligence and gross negligence, and adds a claim of negligence per se. FAC ¶¶ 40-54. Plaintiffs added details about Airbnb's Terms of Service (TOS), Airbnb's Global Party Ban, and Airbnb's Responsible Hosting rules. FAC ¶¶ 26, 33.
The FAC also adds details about 911 calls related to the subject property and about Miami-Dade's emergency order. FAC ¶¶ 16, 35. But the Court took judicial notice of the underlying documents in ruling on the last motion. Order at 3-4. These facts are not new to the Court's analysis of the issues.
II. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) allows an attack on the pleadings for failure to state a claim on which relief can be granted. "[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). However, a complaint must "state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This means that the complaint must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
"Dismissal under Rule 12(b)(6) is proper when the complaint . . . fails to allege sufficient facts to support a cognizable legal theory." Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013) (internal citation omitted).
III. Discussion
Rengifo's death is tragic, but Plaintiffs once again fail to allege sufficient facts to support their negligence claims against Airbnb.
A. Negligence and Gross Negligence
To establish liability on a theory of negligence or gross negligence, a Plaintiff must "prove duty, breach, causation, and damages." Conroy v. Regents of Univ. of Cal., 45 Cal. 4th 1244, 1250, 91 Cal.Rptr.3d 532, 203 P.3d 1127 (2009); see also Jimenez v. 24 Hour Fitness USA, Inc., 237 Cal. App. 4th 546, 552 n.3, 188 Cal.Rptr.3d 228 (2015) (noting that "California does not recognize a distinct common law cause of action for gross negligence apart from negligence").
None of the facts added to the FAC change the prior outcome. Plaintiffs have not pleaded facts sufficient to show the first element of a negligence claim - duty. As detailed in the Court's prior ruling, in California generally "there is no duty to act to protect others from the conduct of third parties." Order at 11 (quoting Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 235, 30 Cal.Rptr.3d 145, 113 P.3d 1159 (2005)). There are some common-law exceptions to this general rule. For example, a special relationship and a negligent undertaking can create a duty even where a third party causes the harm. The California Supreme Court has established a two-step analysis to determine if an exception applies. First, there must be an exception to the no-duty-to-protect rule. Second, if an exception is found, a court then weighs the Rowland factors to see if a duty should be imposed. Id. at 212-13, 276 Cal.Rptr.3d 434, 483 P.3d 159; see Rowland v. Christian, 69 Cal. 2d 108, 70 Cal. Rptr. 97, 443 P.2d 561 (1968). The Rowland factors to be balanced are:
Plaintiffs argue two theories of duty that the Court finds irrelevant because here a third-party is responsible for the harm. Plaintiffs claim there is "a duty when a person's actions create a risk of harm to a plaintiff" and "a general duty." Opp'n at 7; 15-16. These descriptions of duty are just different phrasing of the ordinary negligence duty described in California Civil Code § 1714, which states: "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"). This is exactly the type of duty, however, that is irrelevant where a third-party's malfeasance is responsible for the harm. Order at 11; see also Brown v. USA Taekwondo, 11 Cal. 5th 204, 214, 276 Cal.Rptr.3d 434, 483 P.3d 159 (2021) (explaining that "Section 1714 states a broad rule, but it has limits. We have explained that the law imposes a general duty of care on a defendant only when it is the defendant who has created a risk," but a party "owes no duty to control the conduct of another.") (internal quotation marks omitted).
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.Id. at 212-13, 276 Cal.Rptr.3d 434, 483 P.3d 159 (citing Rowland, 69 Cal. 2d at 112-13, 70 Cal.Rptr. 97, 443 P.2d 561). Once again, Plaintiffs' arguments fail at both steps. No exception applies here, and the Rowland factors preclude the application of an exception.
1. Special Relationship
Plaintiffs discuss "special relationship" and "control over property" as two distinct exceptions. Opp'n 7-10; 12-13. These arguments are not distinct. Compare id. at 7-10 ("Airbnb had the requisite control over the property to establish a special relationship") with Opp'n 12 ("A property manager owes a common law duty of ordinary care to tenants to properly perform his or her duties as property manager, and to maintain the premises in a reasonable manner."). Control over property indicates that one is akin to a landowner with a special relationship and duty to protect invitees on the property. Order at 13. All of Plaintiffs' arguments for these two sections of their briefing are addressed here.
Plaintiffs argue that the common law exception of a special relationship applies. Opp'n at 7. But in order to address the earlier defects, Plaintiffs needed to allege facts showing that Rengifo had a "right to expect protection from" Airbnb or that Airbnb had the "ability to control" McGowan's conduct. Brown, 11 Cal. 5th at 216, 276 Cal.Rptr.3d 434, 483 P.3d 159. They did neither.
The facts alleged do not support the conclusion that Airbnb had a special relationship with the third-party responsible for the harm. Plaintiffs added no facts about Airbnb's connection to McGowan. As before, there is no suggestion that Airbnb had any ability to control McGowan's conduct. To the extent Plaintiffs argue there was a special relationship between Airbnb and the host of the subject property, that is irrelevant. Opp'n at 9 ("Defendant Airbnb controlled hosts"). The host is not the third party who caused the harm. Plaintiffs allege that McGowan, not the host, shot Rengifo. FAC ¶ 8-9.
None of the facts added sufficiently allege a special relationship between Airbnb and Rengifo. Control over a property creates a duty to the invitees where there is a "power to prevent, remedy or guard against the dangerous condition," which courts often construe as an ability to enact physical changes on a property. Colonial Van & Storage, Inc. v. Superior Court, 76 Cal. App. 5th 487, 498, 291 Cal. Rptr.3d 581 (2022). As the Court previously noted, "[s]etting policies and providing a security patrol is not sufficient control to create a duty." Order at 13 (citing Univ. of So. Cal. v. Superior Court, 30 Cal. App. 5th 429, 449, 241 Cal.Rptr.3d 616 (2018), overruled on other grounds by Brown, 11 Cal. 5th at 212, 276 Cal.Rptr.3d 434, 483 P.3d 159). Plaintiffs argue that the Airbnb TOS and the Global Party Ban show that Airbnb controlled the property because it "sets policies related to the use of its platform, maintained the ability to prevent the rental of subject property, and banned parties." Opp'n at 9. The TOS require users to comply with local laws and allow Airbnb to review member content. FAC ¶ 26. The Global Party Ban was an official policy that Airbnb released that prohibited parties and threatened to ban guests who broke those rules. FAC ¶ 33. The policy also opened a neighborhood hotline to report parties, removed "event-friendly" tags on listings, and required users to adhere to COVID-19 public health mandates. Id. Neither of these policies represents sufficient control over the subject property such that Airbnb owed a duty to Rengifo. The TOS and Global Party Ban are simply policies that allow Airbnb to regulate its platform; they did not allow Airbnb to make physical changes to rental properties. The facts show that Airbnb can remove listings and revoke memberships, not that it paves walkways and puts up fences. No special relationship exception applies.
2. Negligent Undertaking
None of the new facts have any bearing on the negligent undertaking analysis. The negligent undertaking exception imposes a duty where a party undertakes rendering services in a manner that "increased the risk of harm beyond what existed without the undertaking." Barenborg v. Sigma Alpha Epsilon Fraternity, 33 Cal. App. 5th 70, 83-84, 244 Cal.Rptr.3d 680 (2019). As before, Plaintiffs point to Airbnb policies and claim negligence because Airbnb is not doing more. As the Court previously explained, these facts do not show that the activities Airbnb undertook made Rengifo worse off than she would have been without the policies. Order at 15. The negligent undertaking exception does not apply.
Compare Order at 13 ("The Plaintiffs have not plausibly alleged a negligent undertaking. They claim that Airbnb 'undertook measures to protect guests and third parties from crime' by 'prohibiting partying, retain[ing] the right to conduct investigations and terminate listings,' reviewing 'what the host posted and edit[ing] the listing,' and 'require[ing] local compliance with law and ordinances.' . . . Plaintiffs instead seem to suggest that this undertaking was negligent because Airbnb did not do more.") (quoting Dkt. 28 at 15) with Opp'n at 10-11 ("Airbnb promulgated rules including rules based upon health and safety standards, prohibited parties at Airbnb properties, encouraged community reporting and implemented enforcement mechanisms, and had a duty to ensure that hosts complied with lease agreements and local laws" but Airbnb "failed to ensure compliance with the law," "failed to require hosts to provide deeds and rental agreements," "failed to ensure hosts prohibited partying on the subject property, failed to ensure that hosts complied with local laws and ordinances, and failed to restrict access to guests under the age of 25.").
3. Rowland Factors
Even if there were some relevant exception, the Rowland factors do not support a finding of duty. The Court previously found that (1) the foreseeability of the crime was low, (2) the connection between Airbnb's conduct and the injury is virtually nonexistent, and (3) the burden of preventing this sort of incident in the future is high. Order at 15 (citing Brown, 11 Cal. 5th at 217, 276 Cal.Rptr.3d 434, 483 P.3d 159). None of the new facts alleged by Plaintiffs change this analysis. The Rowland factors do not support the application of an exception. Order 15-18.
Plaintiffs' negligence and gross negligence claims are DISMISSED with leave to amend.
B. Negligence Per Se
Plaintiffs amended complaint adds a negligence per se claim. Plaintiffs argue that Airbnb is negligent per se because it "allowed the subject property to be listed at a time when Miami-Dade County prohibited short-term rentals to all non-essential workers." FAC ¶ 52. As Airbnb correctly points out, negligence per se "is an evidentiary doctrine, rather than an independent cause of action." Jones v. Awad, 39 Cal. App. 5th 1200, 1210, 252 Cal.Rptr.3d 596 (2019). Under the doctrine,
Negligence is presumed if: (1) The individual violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.Id. at 1210, 252 Cal.Rptr.3d 596 (simplified); see also Cal. Evid. Code § 669(a). Even if this were a cause of action and Plaintiffs could plead factors one, two, and four, Plaintiffs are unable to satisfy factor three. Nowhere do Plaintiffs claim that the Miami-Dade order went into effect to address violence at parties. Indeed, Plaintiffs could not plausibly plead that this is the sort of harm the Miami-Dade order was meant to address. The emergency order was clearly adopted in response to COVID-19. The County wanted to "aid the availability of hotel rooms for" essential workers and to "prevent crowds of people inside and around hotels, as COVID-19 continues to spread" because "numerous persons have congregated in Miami-Dade County for spring break and other social activities, and are congregating in and around hotels without observing the social distancing guidelines." Dkt. 28-7 at 1-2; see also Order at 3-4 (taking judicial notice of 28-7).
The Plaintiffs' negligence per se claim is DISMISSED with prejudice.
* * *
Airbnb's motion to dismiss is GRANTED. Plaintiffs are granted one more opportunity to amend the complaint in conformity with this Order if they can do so consistent with Rule 11 of the Federal Rules of Civil Procedure. An amended complaint may be filed and served no later than February 23, 2023. Failure to file an amended complaint by that date will waive their right to do so and the First Amended Complaint will be dismissed with prejudice. Plaintiffs must provide a redlined version of the amended complaint to the Court's generic chambers email.
IT IS SO ORDERED.