Reginald Green v. Franklin Eliezer Garcia-Victor

REGINALD GREEN, ET AL. * NO. 2022-C-0413

VERSUS *
COURT OF APPEAL
FRANKLIN ELIEZER *
GARCIA-VICTOR, ET AL. FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPLICATION FOR WRITS DIRECTED TO
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-00905, DIVISION “F-14”
Honorable Jennifer M Medley,
******
Judge Edwin A. Lombard
******
(Court composed of Chief Judge Terri F. Love, Judge Edwin A. Lombard, Judge
Sandra Cabrina Jenkins)

MADRO BANDARIES
MADRO BANDARIES, PLC
POST OFFICE BOX 56458
2nd Second Street
New Orleans, LA 70156
-AND-
IRAJ. MIDDLEBERG
YVETTE D'AUNOY
MARIANNE GARVEY
MIDDLEBERG RIDDLE GROUP
909 Poydras Street, Suite 1400
New Orleans. LA 70112

COUNSEL FOR ATTORNEYS FOR PLAINTIFFS/RESPONDENTS

JAMES M. GARNER
DEBRA J. FISCHMAN
MELISSA R. HARRIS
SHER GARNER CAHILL RICHTER
KLEIN & HILBERT, L.L.C.
909 Poydras Street, 28th Floor
New Orleans, Louisiana 70112

COUNSEL FOR DEFENDANTS/APPLICANTS, UBER
TECHNOLOGIES, INC., AND RASIER, LLC

WRIT GRANTED; RELIEF DENIED
SEPTEMBER 7, 2022

EAL
TFL The Relators, Uber Technologies, Inc., and Rasier, LLC., seek review of the
SCJ
May 16, 2022 ruling of the district court, denying their peremptory exceptions of

no cause of action on the general tort claim, breach of duty of good faith and fair

dealing claim and vicarious liability claim of the Respondents, plaintiffs Reginald

Green, et al. Pursuant to our de novo review, we find that the district court district

court did not err in denying the exception of no cause of action as to the

Respondents’ vicarious liability claim. Therefore, under Waiters v. deVille, 19-

1048, (La. App. 4 Cir. 4/22/20), 299 So. 3d 728, we deny the relief sought by the

Relators.

FACTS AND PROCEDURAL HISTORY

In 2016, the Respondents, who are taxi cab drivers in New Orleans, filed suit

against individual Uber drivers, alleging that said drivers violated the Louisiana

Unfair Trade Practices Act (”LUTPA”) because they were transporting passengers

for hire or fee without having a “class D” chauffer’s driver’s license. The

Respondents later filed a Fourth Supplemental and Restated Petition in 2021,

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adding the Relators as defendants.1 The Respondents raised the following

allegations against the Relators in their petition:

1. the Relators committed LUTPA violations by
conspiring with the other defendants and the City of
New Orleans to implement a method or plan to
compete unfairly by violating the city ordinances;

2. the Relators committed general tort violations;

3. the Relators breached the duty of good faith and fair
dealing; and,

4. the Relators are solidarily liable with the other
defendants as conspirators, or in the alternative,
vicariously liable “as agents or mandates of one
another,” or in the alternative, “as general partners in
a partnership,” or in the alternative, as employers of
the individual drivers.

The Relators filed peremptory and dilatory exceptions asserting: the petition

should be dismissed entirely for the failure to request service within ninety days of

filing; the LUTPA claims against the Relators were perempted; and an exception

of no cause of action on the LUTPA, conspiracy, general tort, and breach of good

faith and fair dealing claims.2

Following oral argument, the court issued a written judgment on May 16,

2022, granting in part and denying in part the Relators’ exceptions. The district

court granted the Relators’ exception of peremption regarding the LUTPA claim,

as well as the exception of no cause of action on the conspiracy claim.3 However,

1 “Defendants” as used in the remainder of this opinion shall refer to the Uber drivers only, and

excludes inclusion of the Relators.
2 The Relators also asserted dilatory exceptions of improper cumulation of actions, and
vagueness, ambiguity, and nonconformity, which were denied. Those rulings are not at issue in
the instant writ application.
3 In the Respondents’ opposition to the Relators exceptions filed in the district court, they
admitted that they had not alleged a separate, stand-alone claim of conspiracy, but had instead

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the court denied the: exception of insufficient service of process; exception of no

cause of action regarding the Relators’ vicarious liability for the acts of the

Defendants; the exception of no cause of action on the general tort claim, and the

exception of no cause of action for breaching the duty of good faith and fair

dealing. Lastly, the district court found that the exception of no cause of action on

the LUTPA claim was moot as to the Relators because it was perempted.

After filing their Notice of Intent, the Relators timely filed the instant writ

application. The Relators, as noted above, seek review of the district court’s denial

of their exceptions of no cause of action regarding the Respondents’ vicarious

liability claim, general tort claim, and breach of duty of good faith and fair dealing

claim

STANDARD OF REVIEW

This Court has explained that “[a]n exception of no cause of action tests ‘the

legal sufficiency of the petition by determining whether the law affords a remedy

on the facts alleged in the pleading.’” Henderson v. State Farm Mut. Auto. Ins. Co.,

21-0654, pp. 4-5 (La. App. 4 Cir. 12/17/21), 335 So. 3d 349, 353 (quoting Green v.

Garcia-Victor, 17-0695, p. 4 (La. App. 4 Cir. 5/16/18), 248 So.3d 449, 453

[citations omitted]). Moreover, courts can only review the petition, amendments to

the petition and any documents attached thereto in deciding an exception of no

cause of action. Green, 17-0695, p. 5, 248 So.3d at 453 (quoting 2400 Canal, LLC

v. Bd. of Sup'rs of Louisiana State Univ. Agr. & Mech. Coll., 12-0220, p. 7 (La.

App. 4 Cir. 11/7/12), 105 So.3d 819, 825. “The grant of the exception of no cause

of action is proper when, assuming all well pleaded factual allegations of the

alleged a conspiracy merely to establish solidary liability for the LUTPA violation between the
Relators and the other defendants under La. Civ. Code art. 2324.

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petition and any annexed documents are true, the plaintiff is not entitled to the

relief he seeks as a matter of law.” Id. However, “any doubt must be resolved in

the plaintiffs’ favor.” Id.

Appellate courts review rulings on exceptions of no cause of action using the

de novo standard of review because exceptions of no cause of action present legal

questions. Henderson, 21-0654, p. 5, 335 So. 3d at 353 (citing Tickle v. Ballay, 18-

0408, p. 4 (La. App. 4 Cir. 11/14/18), 259 So.3d 435, 438).

VICARIOUS LIABIILITY

As stated above, the Respondents raised a vicarious liability claim, which

they pled in the alternative to their LUTPA claims. The record reflects that the

Respondents admitted in their second and third supplemental and restated petitions

and at the hearing on the exceptions at issue that the Defendants were independent

contractors, but they further alleged that the Relators exercised control over the

Defendants’ methods of operation.

Under Louisiana law, a principal is not liable for the offenses committed by

an independent contractor while performing contractual duties. Allstate Ins. Co. v.

Veninata, 06-1641, pp. 6-7 (La. App. 4 Cir. 11/7/07), 971 So.2d 420, 425.

However, two exceptions exist to this rule: (1) an owner may not avoid liability for

inherently or intrinsically dangerous work by an independent contractor; (2) an

owner may be liable for exercising control over the contractor's methods of

operation or giving express or implied authorization to an unsafe practice. Id.

(citing Davenport v. Amax Nickel, Inc., 569 So.2d 23, 28 (La. App. 4 Cir.1990)).

Considering that the second exception may be applicable in this matter, pursuant to

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our de novo review, we find that the district court did not err in denying the

Relators’ exception of no cause of action as to the vicarious liability claim.

Furthermore, we note that the matter sub judice involves exceptions of no

cause of action addressing the Respondents’ various claims. Recently, this Court

explained that an exception of no cause of action should be denied in toto where

multiple claims are raised arising out of a singular set of operative facts and the

petition is determined to have raised at least one valid cause of action:

Although the Louisiana Legislature, by enacting
La. C.C.P. art. 1915, authorized a trial court to sustain an
exception as to one or more but less than all of the
claims, demands, issues, or theories against a party, “the
Louisiana Supreme Court has found that such a partial
judgment is improper when the adjudicated claim forms
the basis for several other theories of recovery against the
same defendants.” Robert v. Robert Mgmt. Co., LLC, 13-
1043 (La. App. 4 Cir. 12/19/13) (unpub.), 2013 WL
8151042, (citing Everything on Wheels Subaru, Inc. v.
Subaru South, Inc., 616 So.2d 1234, 1239 (La. 1993)).16
Thus, “[when] a plaintiff's theories of recovery arise out
of the operative facts of the same transaction or
occurrence and the petition states a cause of action as to
any demand or theory of recovery, an exception of no
cause of action should be overruled.” Simmons v.
Templeton, 99-1978, p. 5 (La. App. 4 Cir. 4/12/00), 762
So.2d 63, 66.

Waiters v. deVille, 19-1048, pp. 10-11 (La. App. 4 Cir. 4/22/20), 299 So. 3d

728, 736–37.

Considering the applicable jurisprudence and the facts presented, we find

that the Respondents’ claims of vicarious liability, general tort and breach of duty

of good faith and fair dealing “arise out of the operative facts of the same

transaction or occurrence.” We further find that the petition states a cause of

action as to the Respondents’ vicarious liability claim. Having found that a viable

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cause of action exists under Waiters, we pretermit discussion of the merits of the

remaining two exceptions.

DECREE

In light of the foregoing, we deny the relief sought by the Relators.

WRIT GRANTED; RELIEF DENIED

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