Estate of Silvia Manzo Velasco et al vs Uber Technologies Inc et al

Case Number

24CV03780

Case Type

Hearing Date / Time

Fri, 11/08/2024 - 10:00

Nature of Proceedings

10 Motions to Compel; 2 Motions for Protective Order; Motion for Preferential Trial Setting

Tentative Ruling

(1) For all reasons discussed herein, plaintiffs’ second amended motion for preferential trial setting pursuant to Code Of Civil Procedure sections 36, subdivision (a), and 37, filed on October 1, 2024, is granted. The parties are ordered to appear at the hearing to discuss the scheduling of a trial date within 120 days.

(2) For all reasons discussed herein, plaintiffs’ motion for preferential trial setting pursuant to Code Of Civil Procedure section 36, subdivision (a), filed on April 19, 2024, amended motion for preferential trial setting pursuant to Code Of Civil Procedure section 36, subdivision (a), filed on April 23, 2024, motion for preferential trial setting pursuant to Code Of Civil Procedure section 37 filed on May 10, 2024, and amended motion for preferential trial setting pursuant to Code Of Civil Procedure sections 36, subdivision (a), and 37 filed on August 8, 2024, are ordered off-calendar.

(3) For all reasons discussed herein, plaintiffs’ motions for an order compelling defendant Portier, LLC, and defendant Uber Technologies, Inc., to provide further responses and to produce documents and things responsive to plaintiffs’ demand for production of documents, set two, are each denied without prejudice.

(4) For all reasons discussed herein, the Court continues the hearing on the following motions to November 22, 2024: plaintiffs’ two separately filed motions for orders compelling defendant Checkr, Inc., to provide further responses and to produce documents and things responsive to plaintiffs’ demands for production of documents, sets one and two; the two separately filed motions by defendants Uber Technologies, Inc. and Portier, Inc., for a protective order; plaintiffs’ three separately filed motions for orders compelling defendants Checkr, Inc., Portier, LLC, and Uber Technologies, Inc. to produce their person or persons most knowledgeable regarding the Master Services Agreement for deposition and to produce documents responsive to plaintiff’s demand for production of documents accompanying deposition notice; the motion of Checkr, Inc., for a protective order; and the three separately filed motions by plaintiffs for orders compelling Checkr, Inc., Portier, Inc., and Uber Technologies, Inc., to produce their person or persons most knowledgeable regarding insurance and insurance policies for deposition and to produce documents responsive to plaintiffs’ demand for production of documents accompanying deposition notice.

(5) Plaintiffs, and defendants Checkr, Inc., Portier, Inc., and Uber Technologies, Inc., shall further and fully meet and confer, in good faith, as provided in this ruling and on or before November 15, 2024, file a joint status report or, if necessary, individual status reports fully addressing the matters and issues further described herein.

Background:

This action was originally filed in the Superior Court of California for the County of San Francisco as case no. CGC-23-606780 entitled Estate of Silvia Manzo Velasco v. Uber Technologies et al. (the SF Action). Pursuant to a court order entered in the SF Action on May 23, 2024, the SF Action was transferred to this Court on July 9, 2024, and assigned new case number 24CV03780.

Records transferred to this Court reflect that on May 30, 2023, plaintiffs the Estate of Silvia Manzo Velasco (Silvia) by and through its successor in interest Ricardo Velasco (Ricardo), Ricardo, Juan Velasco (Juan), Ana Velasco (Ana), Kasandra Velasco (Kasandra), Monica Velasco (Monica), Jose Alvarado (Jose) by and through is guardian ad litem Ana, and Francisca Solis (Solis) (collectively, plaintiffs) filed their original complaint against defendants Uber Technologies, Inc. (Uber), Portier, LLC (Portier), Checkr, Inc. (Checkr), and Andrew Raymond Burgher (Burgher) (collectively, defendants), alleging four causes of action: (1) negligence (against all defendants); (2) negligent hiring, supervision, or retention (against Uber, Portier, and Checkr); (3) wrongful death (against all defendants); and (4) survival action (against all defendants). (Note: Due to common surnames, the Court will, where necessary, refer to plaintiffs by their first names. No disrespect is intended.)

Court records further reflect that on June 6, 2023, plaintiffs filed a first amended complaint against defendants alleging the same four causes of action described above. As alleged in the operative FAC:

Ricardo is the husband of Silvia, and Juan, Ana, Kasandra, and Monica are Silvia’s children. (FAC, ¶¶ 6-10.) Jose is Silvia’s biological grandson, and Solis is the mother of Silvia. (Id. at ¶¶ 11-12.)

Uber operates a Transportation Network Company which provides transportation options and vehicles for users of its services through an online application (the Uber App). (FAC, ¶ 13.) Portier is a wholly owned subsidiary of Uber that runs the Delivery Network Company arm of Uber and that does business as Uber Eats, a division of Uber that provides on-demand food delivery services through an “Uber Eats App” mobile phone application. (Id. at ¶¶ 14 & 16.) Uber and Portier (collectively, the Uber Parties) employ drivers through the Uber App and Uber Eats App. (Id. at ¶ 16.) Portier generates leads for Uber Eats drivers through the Uber Eats App to facilitate the delivery of food to customers, and holds the insurance certificate for insurance carried by Uber. (Id. at ¶¶ 16 & 18.)

The Uber Parties perform background investigations of drivers through Checkr, a third-party investigative consumer reporting agency. (FAC, ¶¶ 19 & 52.) The background checks which the Uber Parties outsource to Checkr are based on unverified information submitted by prospective drivers either via the Uber Eats App or the website, and do not require a biometric identifier such as a fingerprint. (Id. at ¶ 46.) As a result, the background checks performed by Checkr on behalf of the Uber Parties fail to uncover criminal conduct and driving histories due to Uber and Portier’s self-imposed requirement for expediency. (Ibid.)

Burgher entered into a Technology Services Agreement with the Uber Parties in which Burgher agreed that Burgher’s transportation of passengers or delivery of food for Uber and Portier furthered an employer-employee relationship. (FAC, ¶ 61.) On October 26, 2021, Silvia was the passenger in a vehicle which, suddenly and without warning, was violently struck by a vehicle operated by Burgher. (Id. at ¶ 73.) At the time of the incident, Burgher was working as a commercial driver for Uber and Uber Eats. (Id. at ¶ 74.) Prior to the incident, Burgher had been operating his vehicle in excess of posted speed limits, including at speeds up to 120 miles per hour, while intoxicated. (Id. at ¶¶ 75-76.)

Checkr was employed by the Uber Parties to investigate Burgher’s criminal history and motor vehicle records, but failed to identify Burgher’s prior criminal convictions which include, among other things, that Burgher was on probation for a second “DUI” conviction until October 31, 2014, within the seven years prior to his background check in connection with his potential employment with the Uber Parties. (Id. at ¶ 82.)

On December 15, 2023, Uber and Portier separately answered the FAC, generally denying its allegations and asserting affirmative defenses. Burgher filed an answer to the FAC on January 16, 2024, generally denying its allegations and asserting affirmative defenses. Checkr filed its answer to the FAC on February 22, 2024, also generally denying its allegations and asserting affirmative defenses.

As noted above, on May 23, 2024, the San Francisco County Superior Court entered an order granting the motion of Portier and Uber to transfer venue of the SF Action to this Court.

Plaintiffs’ motions for preference:

Records transferred to this Court show that on April 19, 2024, plaintiffs filed in the SF Action a motion for preferential trial setting (the First Preference Motion), which is brought under Code of Civil Procedure section 36, on the grounds that Solis is over 70 years of age, has a substantial interest in the action as a whole, and that the health of Solis is such that preference is necessary to prevent prejudicing her interest in the litigation. The notice of the First Preference Motion reflects a hearing date of May 7, 2024.

On April 23, 2024, plaintiffs filed an amended motion for preferential trial setting (the Amended First Preference Motion) which appears to be identical to the First Preference Motion in all respects with the exception of the hearing date which ostensibly was changed to May 15, 2024.

On May 2, 2024, defendants separately filed oppositions to the First Preference Motion and Amended First Preference Motion.

On May 10, 2024, plaintiffs filed in the SF Action a second motion for preferential trial setting (the Second Preference Motion), which is brought under Code of Civil Procedure section 37 based on a guilty or no contest plea entered by Burgher as to two felony charges or counts alleged in Santa Barbara County Superior Court case number 21CR07000 entitled People of the State of California v. Andrew Raymond Burgher (the Criminal Action). The Second Preference Motion was set for hearing in the SF Action on June 4, 2024.

On May 14, 2024, the court entered in the SF Action an order granting the ex parte application of the Uber Parties to coordinate the hearing dates for the First Preference Motion, the Amended First Preference Motion, and the Second Preference Motion, with the hearing date for the motion to transfer venue filed in the SF Action. In its May 14, 2024, order, the court in the SF Action set the hearing date on each of the motions described above on June 4, 2024.

Defendants separately filed oppositions to the Second Preference Motion on May 21, 2024.

On August 8, 2024, following the transfer of the SF Action to this Court, plaintiffs filed an amended motion for preferential trial setting (the Third Preference Motion), which is brought under Code of Civil Procedure sections 36 and 37. The Third Preference Motion also includes assertions that Solis is over 70 years of age, that Solis has a substantial interest in the action as a whole, that Solis’ health is such that preference is necessary to prevent prejudice to her interests in this litigation, and that Burgher was convicted of two counts of murder in relation to the incident at issue for which plaintiffs seek damages. The Third Preference Motion was set for hearing on November 8, 2024.

On August 12, 2024, plaintiffs filed an ex parte application in which plaintiffs argued that the Court should grant the Third Preference Motion based on Solis’ age, health issues, and financial dependence on and financial dependence on Silvia. Alternatively, plaintiffs requested that the Court specially set a hearing date for the Third Preference Motion to avoid delay. The August 12, 2024, ex parte application of plaintiffs was opposed by Burgher and the Uber Parties.

On August 14, 2024, the Court denied the August 12, 2024, ex parte application of plaintiffs.

On October 1, 2024, plaintiffs filed a “second” amended motion for preferential trial setting (the Fourth Preference Motion) which is also brought under Code of Civil Procedure sections 36 and 37 based on Solis’ age, health, and Burgher’s conviction in the Criminal Action. The Fourth Preference Motion was set for hearing October 25, 2024. Defendants have separately filed oppositions to the Fourth Preference Motion.

On October 25, 2024, the Court continued the hearing on the Fourth Preference Motion to November 8, 2024, to be heard concurrently with the Third Preference Motion filed with this Court by plaintiffs.

Plaintiffs’ discovery motions:

Plaintiffs have also filed ten discovery motions with this Court as further described below, and which the Court will refer to collectively as the Discovery Motions.

On July 26, 2024, plaintiffs filed a motion for an order compelling Checkr (the Checkr Set One Motion) to serve further responses and to produce documents responsive to plaintiffs’ set one demand for production of documents (the Checkr Set One Demand), which is opposed by Checkr.

On September 13, 2024, plaintiffs filed a motion for an order compelling Checkr (the Checkr Set Two Motion) to serve further responses and produce documents responsive to plaintiffs’ set two demand for production of documents (the Checkr Set Two Demand), which is also opposed by Checkr.

On September 26, 2024, plaintiffs separately filed two motions for orders compelling Uber and Portier (respectively, the Uber Set Two Motion and the Portier Set Two Motion) to each serve further responses and produce documents responsive to plaintiffs’ set two demands for production of documents (respectively, the Uber Set Two Demand and the Portier Set Two Demand), which are separately opposed by Uber and Portier.

On October 1, 2024, plaintiffs separately filed three motions to compel the depositions of the most qualified individuals of Uber, Checkr, and Portier as to a Master Services Agreement executed on October 16, 2020 (the MSA), and to produce documents at the deposition (respectively, the Uber MSA Motion, the Checkr MSA Motion, and the Portier MSA Motion, and collectively, the MSA Motions), which are each separately opposed by Uber, Checkr, and Portier.

On October 11, 2024, plaintiffs separately filed three motions for orders compelling the deposition of the person or persons most knowledgeable of Uber, Checkr, and Portier as to insurance policies applicable to this action and the incident at issue, and to produce documents at the deposition (respectively, the Uber Insurance Motion, the Checkr Insurance Motion, and the Portier Insurance Motion, and collectively, the Insurance Motions), which are each separately opposed by Uber, Checkr, and Portier.

Uber, Portier, and Checkr motions for protective orders:

On September 30, 2024, the Uber Parties filed a motion for a protective order (the Uber Protective Order Motion) which Uber and Portier contend is necessary to prevent the disclosure to the public or competitors of confidential, commercially sensitive, and proprietary information as a consequence of discovery conducted in this action including with respect to the MSA and depositions of the Uber Parties person or persons most knowledgeable. In the Uber Protective Motion, the Uber Parties request that the Court stay the deposition of the Uber Parties’ person most knowledgeable pending a ruling on the Uber Protective Motion. Plaintiffs oppose the Uber Protective Motion.

On October 3, 2024, Checkr filed a joinder to the Uber Protective Motion, and separately filed a motion for a protective order (the Checkr Protective Order Motion) with respect to confidential and proprietary documents of Checkr and the Uber Parties appearing in the MSA. Checkr also and effectively requests that the Court stay the deposition of persons most knowledgeable with respect to the MSA.

On October 4, 2024, the Uber Parties filed a second motion for a protective order (the Second Uber Protective Order Motion) with respect to documents and information requested in the Uber Set Two Demand and the Portier Set Two Demand, which is effectively opposed by plaintiffs.

Analysis:

(1) Plaintiffs’ Motions for Preference

As further detailed above, the First Preference Motion, the Amended First Preference Motion, the Second Preference Motion, the Third Preference Motion, and the Fourth Preference Motion (collectively, the Preference Motions) remain to be determined. The Court will first determine the Fourth Preference Motion as the latest motion filed in this Court.

Under Code of Civil Procedure section 36, if a party to a civil action is over 70 years of age, that party may “petition the court for a preference, which the court shall grant” upon a finding that the party “has a substantial interest in the action as a whole” and the “health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.” (Code Civ. Proc., § 36, subd. (a)(1)-(2).) In addition, a party who reaches 70 years of age during the pendency of an action may file and serve a motion for preference. (Code Civ. Proc., § 36, subd. (c)(2).) A motion for preference “may be granted only upon an affirmative showing by the moving party of good cause based on a declaration served and filed with the motion or application.” (Cal. Rules of Court, rule 3.1335(b).)

Whenever a litigant is 70 years old and qualifies for protection, Code of Civil Procedure section 36, subdivision (a), “is mandatory and absolute in its application and does not allow a trial court to exercise the inherent or statutory general administrative authority it would otherwise have.” (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 692.) In addition, the “[f]ailure to complete discovery or other pre-trial matters does not affect the absolute substantive right to trial preference for those litigants who qualify for preference under subdivision (a) of section 36. The trial court has no power to balance the differing interests of opposing litigants in applying the provision. The express legislative mandate for trial preference is a substantive public policy concern which supersedes such considerations.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085-1086 (Swaithes).)

In support of the Fourth Motion, plaintiffs submit the declaration of their counsel, Douglas S. Wacker (Wacker) who declares that Solis was born on August 21, 1952, and is presently 71 years of age. (Wacker Decl., ¶ 6.) Wacker further asserts that Solis is the mother of Silvia, and was financially dependent on Silvia for her basic needs. (Ibid.)

Wacker states that Solis suffers from chronic health conditions which include hypertension, hypothyroidism, glaucoma, impaired glucose tolerance, obesity, major depressive disorder, fibromyalgia, osteoarthritis, Sjogren’s syndrome, obstructive sleep apnea, and a history of diastolic heart failure with atrial fibrillation resulting in an aortic root replacement/ascending aortic aneurysm repair with a bioprosthetic aortic valve and permanent dual chamber pacemaker implantation in January 2016 as a result of complications due to a complete heart block. (Wacker Decl., ¶ 8.) In addition, Solis has had two fall incidents requiring emergency medical services and hospital visits within the past few months, one of which required dental surgery to repair broken teeth. (Id. at ¶ 9.) Solis recently had a three-level spinal fusion surgery and experienced delirium as a result. (Id. at ¶ 10.)

Wacker asserts that Solis’ health conditions and memory loss have continued to worsen during litigation of this matter and are of concern to her family members. (Wacker Decl., ¶ 10 [second].) Solis’ prognosis is unlikely to get better as most of her conditions are related to her elderly age, and it is possible that her condition may become significantly worse. (Ibid.)

Attached to the Wacker declaration as exhibits A through E are medical records describing Solis’ medical conditions. Records dated January 19 and February 2, 2022, pertaining to a “new patient visit” with Kai-Chin Jeng, MD, and progress notes, reflect that Solis is over 70 years of age and suffers from severe depression. (Wacker Decl., Exh. A at PDF p. 14.) These medical records also reflect that Solis has a past and present medical history of diastolic heart failure, complete heart block, atrial fibrillation or “Afib”, hypertension, hypothyroidism, chronic pain, fibromyalgia, and cognitive changes. (Id. at PDF pp. 14-15 & 17.) Solis’ past medical history is significant for hypothyroidism, and aortic root dilatation and repair with a complete heart block. (Ibid.) Solis was initially referred to cardiology due to an abnormal echo, with a repeat echo noting a dilated aortic root and a severely dilated “LV”. (Id. at p. 15.) Solis underwent a mechanical aortic valve replacement in April 2012, among other things. (Ibid.) Solis had a pacemaker implanted on January 25, 2016. (Ibid.) Solis’s Afib has been medically managed. (Ibid.)

Solis also suffers from glucose intolerance, chronic digestive issues, a Vitamin D deficiency, and Sjogren’s syndrome with unspecified organ involvement. (Wacker Decl., Exh. A at PDF p. 18.)  Solis also takes a number of medications for her symptoms and medical conditions. (Id. at PDF p. 14.)

Medical records relating to a follow-up orthopedic visit with Richard C. Rooney, MD, dated July 3, 2024, also indicate that Solis was recommended for surgery with respect to stenosis and spondylolisthesis of the lumbar region. (Wacker Decl., Exh. B.) Notes dated June 12, 2024, following a visit to the emergency department of Lompoc Valley Medical further reflect that Solis suffered from a fall resulting in dental trauma and a broken finger, and that Solis suffers from chronic spine issues for which she would receive surgery. (Id. at Exh. C.) Consultation notes authored on July 12, 2024, further describe Solis’ “significant” past medical history as further detailed above and in the Wacker declaration, and show that following surgery, Solis became confused, agitated, and required consultation for management of these conditions. (Id. at Exh. E.)

Wacker further asserts, and the procedural history of this action further detailed above shows, that all defendants have filed an answer to the operative FAC. (Wacker Decl., ¶ 4.)

To the extent the order requested in the Fourth Preference Motion is brought under subdivision (a) of Code of Civil Procedure section 36, the information and evidence offered in the Wacker declaration and exhibits to that declaration are sufficient for present purposes to show Solis’ age and present medical condition. (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 534 (Fox).)

With respect to whether Solis has a substantial interest in the action as a whole, plaintiffs assert that the theory of liability underlying the claims asserted by Solis in this action is based on Code of Civil Procedure section 377.60, which sets forth standing requirements for a wrongful death action. The undisputed information and evidence appearing in the FAC and the Wacker declaration is sufficient to show that Solis is the mother of Silvia. The allegations of the FAC also demonstrate that Silvia’s children are also parties to the action. “[W]here a decedent leaves issue, ‘his parents would not be his heirs at all [citations] and therefore not entitled to maintain this [wrongful death] action at all.’ [Citations.]” (Chavez v. Carpenter (2001) 91 Cal.App.4th 1433, 1440.)

Though plaintiffs do not assert that Silvia has no issue, plaintiffs contend that Solis nevertheless qualifies as a proper party under Code of Civil Procedure section 377.60, subdivision (b)(1), which provides that a parent of a decedent may assert a cause of action for the death of the decedent caused by the wrongful act or neglect of another if the parent was dependent on the decedent. (Code Civ. Proc., § 377.60, subd. (b)(1).) To the extent Solis contends that as Silvia’s mother, she has standing to pursue a claim for the wrongful death of Silvia, the right of Solis to maintain the action “must be founded upon [Solis’] status as [a] dependent parent[].” (Hazelwood v. Hazelwood (1976) 57 Cal.App.3d 693, 696.) The information offered by plaintiffs to show that Solis was a dependent parent of Silvia is a statement by Walker, made upon information and belief, that Solis was financially dependent on Silvia for her financial needs. (Wacker Decl., ¶ 7.)

To rebut the statements made in the Wacker declaration, the Uber Parties submit as exhibit A to the declaration of their counsel, David S. Killoran (Killoran), a declaration of Ocelina Angel (Angel). The Angel declaration is made and executed in Spanish. With the Angel declaration, the Uber Parties submit an English translation prepared by Christopher Gosman, who states he is a certified interpreter under Evidence Code section 751, subdivision (d). (Killoran Decl., Exh. A at PDF p. 18.) Angel declares that she has reviewed the declaration in English and Spanish, and was provided the opportunity to make any changes deemed necessary to ensure its accuracy. (Id. at Exh. A [Angel Decl.], ¶ 3.)

Angel declares that she lived in the same house with Silvia on October 26, 2021. (Killoran Decl., Exh. A [Angel Decl.], ¶ 1.) When Silvia moved in with Angel, Silvia told Angel that “if anyone ever came looking for [Silvia], she did NOT live there.” (Id. at ¶ 2.) Silvia told Angel that Silvia’s family didn't like that she was dating Gilberto, who was Silvia’s boyfriend, that Silvia's husband and daughters had kicked her out of the house, and that Silvia was afraid that if they found her they would hurt her. (Ibid.) Silvia said that she no longer spoke to her family, that they had kicked her out of their house and out of their lives, that her family was very angry with her for living with Gilberto, and that her daughters wanted to beat her up. (Ibid.)

Uber and Portier also submit the deposition testimony of Olga Hernandez (Hernandez), who is also Solis’ daughter with whom Solis at times resided. (Killoran Decl., Ex. C at p. 17, l. 19–p. 18, l. 3.) Uber and Portier contend that the testimony of Hernandez shows that Solis moved into her own apartment but later moved back in with Olga because the rent was increased, and continued to pay her own rent following Silvia’s death. (Uber & Portier Opp. at p. 5.)

The Uber Parties also contend that Solis’ verified discovery responses show that Solis never produced bank statements establishing that Solis received financial support from Silvia. (Killoran Decl., Exh. B at p. 7 [Solis verified discovery responses identifying bank statements reflecting rent payments made by Silvia].) The Uber Parties also submit the transcript of the deposition of Solis to show that Solis testified she would not deposit rent money received by Silvia into these bank accounts. (Id. at Exh. C at p. 37, ll. 11-16.)

Whether the evidence and information offered by the Uber Parties is or is not sufficient to show that Solis was not financially dependent on Silvia, or that Silvia did not provide monetary assistance to Solis, “pecuniary loss” for which damages are available to surviving heirs in wrongful death cases “includes the ‘loss of the comfort, protection and society of the deceased’. [Citation.]” (Gallo v. Southern Pac. Co. (1941) 43 Cal.App.2d 339, 346; see also Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 793 [damages for pecuniary loss include loss of services, training, and advice].) The evidence offered by the Uber Parties shows that Silvia provided services, advice, comfort, protection, and society to Solis. (See, e.g., Killoran Decl., Exh. B [Solis Depo.] at p. 19, ll. 10-18 [testimony that Silvia found Solis an apartment, made her go to appointments, and was “supporting” Solis on that] & p. 20, ll. 12-21 [describing help Silvia provided to Solis]; Exh. D [Hernandez Depo.] at p. 42, ll. 8-15 [Solis sometimes lived with Silvia and would take Solis to the doctor and stay with Solis two or three days].)

In its opposition to the Fourth Preference Motion, Checkr also argues that Solis does not have standing to pursue a wrongful death claim in this action because Silvia did not provide financial assistance to Solis. The same reasoning and analysis apply. Moreover, additional evidence submitted by Checkr in support of its opposition indicates that Silvia provided financial assistance and other services to Solis. (See, e.g., Declaration of Emily Gegne, Exh. A [Solis Depo.] at p. 21, ll. 3-23 [Silvia would leave money in Solis’ apartment on day of rent payment] & p. 57, ll. 24-25 [Silvia brought groceries to Solis’ home].)

For all reasons discussed above, the evidence and information presented by the Uber Parties and Checkr in opposition to the Fourth Preference Motion fails to show that Solis did not suffer a pecuniary loss or that Solis does not have standing to pursue a wrongful death claim as a parent of Silvia. Because available evidence and information indicates that Solis suffered some measure of pecuniary loss, the Court finds that Solis has a substantial interest in the action as a whole.

Defendants further contend that plaintiffs have failed to show that Solis’ health or medical issues prevent Solis from proceeding to trial. Defendants appear to conflate the requirements for mandatory and discretionary preference under the statute. “The issue under subdivision (a) is not whether an elderly litigant might die before trial or become so disabled that she might as well be absent when trial is called. Provided there is evidence that the party involved is over 70, all subdivision (a) requires is a showing that that party's ‘health ... is such that a preference is necessary to prevent prejudicing [her] interest in the litigation.’ []” (Fox, supra, 21 Cal.App.5th at p. 534, original italics.)

Plaintiffs have presented specific evidence to show that Solis suffers from a number of medical illnesses which include hypertension and cardiac issues and conditions, as well as cognitive issues. These documented medical illnesses are not insignificant, and are treated with a number of medications. These conditions also appear to have deteriorated Solis’ physical and mental health. Defendants present no evidence to challenge the veracity of the medical information submitted by plaintiffs or which shows that there exists some circumstance under which a basis exists to require more detail. (See, e.g., Fox, supra, 21 Cal.App.5th at p. 535.)

Moreover, to the extent Solis is presently stable and her medical ailments and conditions are managed, “indeterminacy is not only inherent in the situation, but is part of the challenge of dealing with it.” (Fox, supra, 21 Cal.App.5th at p. 536.) Notwithstanding whether the medical information and records offered in support of the motion may show that Solis is presently stable and able to attend a trial, there is no information or evidence to show that Solis will remain able to attend a trial or that Solis’ prognosis will not worsen. Further, Solis is not required to “wait to file a preference motion until she is clearly in her final days ….” (Ibid.) For all reasons discussed above, the information and evidence presented in the Fourth Preference Motion sufficiently shows the existence of a risk that a future incapacity of Solis “might deprive [Solis] of the opportunity to have [her] case effectively tried and to obtain the appropriate recovery.” (Swaithes, supra, 212 Cal.App.3d at p. 1085.)

The remaining arguments asserted by defendants are also conclusory and insufficient to challenge the veracity of the medical records submitted by plaintiffs including the information appearing in those records, or to show a reasoned basis to require more detail about Solis’ health or medical condition.

Under the totality of the circumstances present here and for all reasons discussed above, the Court finds that Solis has a substantial interest in the action as a whole. The Court further finds that plaintiffs have made a sufficient showing that Solis’ health presents a risk that Solis’ interest in this litigation may be prejudiced such that a preference is necessary. For these reasons, the Court has no discretion to dispense with statutory mandates considering Solis’s health and age. (Miller v. Superior Court (1990) 221 Cal.App.3d 1200, 1208-1209.) Therefore, the Court will grant the Fourth Preference Motion.

Though it is presently unclear to the Court whether plaintiffs intended that the First Motion, the Amended First Preference Motion, the Second Preference Motion, and the Third Preference Motion be considered or determined separately, it is the Court’s understanding that plaintiffs intended that the Fourth Preference Motion supersede each of the prior preference motions filed by plaintiffs. To the extent the Court’s understanding is inaccurate and plaintiffs intended that the prior preference motions be treated separately, the First Motion, the Amended First Preference Motion, the Second Preference Motion, and the Third Preference Motion are each moot as a result of the Court’s ruling herein. Therefore, these motions will be ordered off-calendar.

The Court will further order the parties to appear at the hearing on the Fourth Preference Motion and be prepared to discuss the scheduling of a trial date not more than 120 days from the date the Court grants the Fourth Preference Motion. (Code Civ. Proc., § 36, subd. (f).)

(2) The Discovery Motions, Uber Protective Order Motion, Checkr Protective Order Motion, and the Second Uber Protective Order Motion

The Uber Set Two Motion and the Portier Set Two Motion:

With respect to the Uber Set Two Motion and the Portier Set Two Motion, information submitted by the Uber Parties in opposition to these motions demonstrates, without conflict, that Uber served supplemental responses to the Uber Set Two Demand and that Portier served supplemental responses to the Portier Set Two Demand. (See Declarations of Samantha J. Hughes, Exhs. D [Uber and Portier’s supplemental responses].) Plaintiffs contend that the supplemental responses of the Uber Parties remain deficient including with respect to the production of categories of documents withheld on the grounds of confidentiality and the purported request by the Uber Parties for a protective order.

Where, as here, a responding party provides discovery requested in a motion to compel and the moving party proceeds with the motion, the court has substantial discretion to determine how to rule on the motion based on the circumstances of the case. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408-409.) The court may take the motion off-calendar, deny the motion as moot, or narrow the scope of the motion to the issue of sanctions. (Id. at p. 409; see also Cal. Rules of Court, rule 3.1348(a).)

In the Uber Set Two Motion and the Portier Set Two Motion, plaintiffs do not request an award of sanctions against the Uber Parties. Though plaintiffs assert that issues remain, considering the totality of the circumstances present here and in the interest of judicial efficiency and to avoid piecemeal rulings, the Court will at this stage of the proceedings deny the Uber Set Two Motion and the Portier Set Two Motion as moot, without prejudice to the filing of a procedurally sufficient motion to compel should plaintiffs deem that either of the Uber Parties’ supplemental responses to the Uber Set Two Demand or the Portier Set Two Demand remain deficient. Any disputes regarding the Uber Parties’ supplemental responses or production of documents may be raised in a procedurally appropriate future motion to compel, provided the parties fully meet and confer in good faith.

The remaining Discovery Motions, the Uber Protective Order Motion, Checkr Protective Order Motion, and the Second Uber Protective Order Motion:

Based on the issues and arguments presented in the remaining Discovery Motions, the Uber Protective Order Motion, the Checkr Protective Order Motion, and the Second Uber Protective Order Motion, it is the Court’s understanding that the parties’ disputes center on whether or not a protective order under which the parties may designate confidential matters is warranted. Generally, the Uber Parties and Checkr contend that a protective order is necessary to permit them to designate documents, including the MSA, or information appearing in documents, as confidential. Plaintiffs, on the other hand, have wholly refused to stipulate to a protective order. It also appears that the issues presented in the remaining Discovery Motions may be mooted upon the Court’s determination of the Uber Protective Order Motion, the Checkr Protective Order Motion, and the Second Uber Protective Order Motion.

The Court has reviewed information presented in the Uber Protective Order Motion, the Checkr Protective Order Motion, and the Second Uber Protective Order Motion, including information and evidence appearing in the Declaration of Peter Sauerwein (Sauerwein), who is employed with Uber as a Senior Manager of Corporate Business Operations, submitted by the Uber Parties. The information appearing in the Sauerwein declaration is also relevant to arguments asserted by Checkr in the Checkr Protective Order Motion.

Considering the nature of the order sought by the Uber Parties and Checkr, the evidence, information, and arguments presented and advanced by the Uber Parties and Checkr are sufficient to justify the issuance of a general protective order for the purpose of protecting documents designated as confidential by the parties, subject to the Court’s review should any party contend that a confidential or other designation is not warranted or improper, and for the purpose of facilitating the production of documents and other discovery sought by plaintiffs. (See, e.g., Mercury Interactive Corp. v. Klein (2007) 158 Cal.App.4th 60, 106-107 [general discussion]; Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145.) Plaintiffs fail to sufficiently explain why the issuance of a general protective order for the purpose of designating documents as confidential, subject and without prejudice to the Court’s review of any such designation, would impede plaintiffs’ ability to conduct discovery in this action or cause prejudice to plaintiffs, considering that the Uber Parties and Checkr have indicated their intention to produce documents and persons for deposition subject to a such a protective order. For these reasons, the Court is presently inclined to grant the Uber Protective Order Motion, the Checkr Protective Order Motion, and the Second Uber Protective Order Motion, without prejudice to any future motion that may be filed by any party with respect to the designation of any matters as confidential under such protective order.

In light of the Court’s intended ruling on the Uber Protective Order Motion, the Checkr Protective Order Motion, and the Second Uber Protective Order Motion, the Court will continue the hearing on these motions to permit the parties to further meet and confer, fully and in good faith, with respect to the terms of an appropriate protective order and the related issues presented in the remaining Discovery Motions, the Uber Protective Order Motion, the Checkr Protective Order Motion, and the Second Uber Protective Order Motion.

Considering the Court’s ruling on the Fourth Preference Motion, the Court will continue the hearing date on the Uber Protective Order Motion, the Checkr Protective Order Motion, and the Second Uber Protective Order Motion, to November 22, 2024. In addition, and to preserve judicial economy and avoid piecemeal rulings, the Court will also continue the hearing on the remaining Discovery Motions to November 22, 2024.

The Court will further order the parties to submit, on or before November 15, 2024, a joint status report, or if necessary, individual status reports, setting forth the parties’ efforts to meet and confer regarding the terms of an appropriate protective order and the issues presented in the remaining Discovery Motions, the Uber Protective Order Motion, Checkr Protective Order Motion, and the Second Uber Protective Order Motion, including whether the issues presented in these motions have been resolved. To the extent the parties are unable to agree to the terms of a protective order or otherwise resolve the parties’ disputes, the parties shall clearly identify in their joint or individual status reports, which, if any, issues remain to be determined with respect to the remaining Discovery Motions, the Uber Protective Order Motion, Checkr Protective Order Motion, and the Second Uber Protective Order Motion.