Tentative Ruling: Estate of Silvia Manzo Velasco et al vs Uber Technologies Inc et al

Case Number

24CV03780

Case Type

Hearing Date / Time

Fri, 04/24/2026 - 10:00

Nature of Proceedings

CMC; Motion: Seal; Motion: Preference; 4 Motions for Summary Judgment

Tentative Ruling

1. (1) For the reasons stated herein, the motion of defendants Uber Technologies, Inc., and Portier, LLC, for summary judgment or adjudication as to plaintiffs Francisca Solis and Jose Alvarado; the motion of defendants Uber Technologies, Inc., and Portier, LLC, for summary judgment or, in the alternative, summary adjudication of plaintiffs’ fourth cause of action and prayer for punitive damages; and the motion of defendant Checkr, Inc., for summary judgment or adjudication (filed on July 25, 2025), are continued to August 7, 2026.
2. (2) For the reasons stated herein, the fourth amended motion of plaintiffs for preferential trial setting pursuant to Code of Civil Procedure sections 36, subdivision (a), or 37, is denied.
3. (3) The court continues the motion of plaintiffs for summary adjudication to June 12, 2026.

Background:

As alleged in the operative first amended complaint (FAC) filed by plaintiffs the Estate of Silvia Manzo Velasco (Silvia), by and through its successor in interest Ricardo Velasco; Juan Velasco; Ana Velasco (Ana); Kasandra Velasco; Monica Velasco; Jose Alvarado (Alvarado) by and through his guardian ad litem Ana; and Francisca Solis (Solis) (collectively, Plaintiffs):

Uber Technologies, Inc., (Uber) operates a “Transportation Network Company” that provides transportation options and vehicles through the “Uber App” online application. (FAC, ¶ 13.) Portier, LLC, (Portier) is a subsidiary of Uber that provides food delivery services through the “Uber Eats App” mobile phone application. (Id. at ¶¶ 14 & 16.) Uber and Portier (collectively, the Uber Parties) employ drivers through the Uber App and the Uber Eats App. (Id. at ¶ 16.)

The Uber Parties perform background investigations of their drivers using Checkr, Inc., (Checkr), which is a third-party consumer reporting agency. (FAC, ¶¶ 19 & 52.) Because the background checks outsourced by the Uber Parties to Checkr are based on unverified information submitted by prospective drivers, they fail to uncover driver histories or criminal conduct. (Id. at ¶ 46.) 

On October 26, 2021, while working as a driver for Uber and Uber Eats, Andrew Raymond Burgher (Burgher) operated his vehicle at speeds up to 120 miles per hour while intoxicated, and struck a vehicle in which Silvia was a passenger, killing Silvia. (FAC, ¶¶ 61 & 73-76.) Though the Uber Parties employed Checkr to investigate Burgher’s criminal and motor vehicle record, Checkr failed to identify prior criminal convictions which showed, among other things, that Burgher was on probation for a second “DUI” conviction. (Id. at ¶ 82.)

This action was originally filed on May 30, 2023, as San Francisco Superior Court case no. CGC-23-606780 entitled Estate of Silvia Manzo Velasco v. Uber Technologies et al., and transferred to this court on July 9, 2024. The original complaint filed by Plaintiffs against defendants Uber, Portier, Checkr, and Burgher (collectively, defendants), asserts 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).

Plaintiffs filed their operative FAC against defendants on June 6, 2023, alleging the same four causes of action described above.

On December 15, 2023, Uber and Portier separately filed their respective answers to the FAC, generally denying its allegations and asserting affirmative defenses.

On January 16, 2024, Burgher filed an answer to the FAC, generally denying its allegations and asserting affirmative defenses.

On February 22, Checkr filed an answer to the FAC, generally denying its allegations and asserting affirmative defenses.

The relevant procedural history of this case reflects that on April 19, 2024, Plaintiffs filed a motion for preferential trial setting (the First Preference Motion), on the grounds that Solis, who is Silvia’s mother, is over 70 years of age, and that Solis’ health warrants a trial preference to prevent any prejudice to the interests of Solis in this litigation. The First Preference Motion was calendared for hearing on May 7, 2024.

On April 23, 2024, Plaintiffs filed an amended motion for preferential trial setting (the Amended First Preference Motion) reflecting a new hearing date of May 15, 2024.

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

On May 10, plaintiffs filed a motion for preferential trial setting (the Second Preference Motion), on the grounds that Burgher entered a guilty or no contest plea 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 calendared for hearing on June 4, 2024.

On May 14, the San Francisco Superior Court granted the ex parte application of the Uber Parties to coordinate the First Preference Motion, the Amended First Preference Motion, and the Second Preference Motion for hearing, and set the hearing date on those motions for June 4, 2024.

On May 21, defendants separately filed their respective oppositions to the Second Preference Motion.

On August 8, after the case was transferred to this court, Plaintiffs filed a motion titled as an “amended” motion for preferential trial setting pursuant to Code of Civil Procedure sections 36, subdivision (a), or 37 (the Third Preference Motion), which was originally calendared for hearing on November 8, 2024. The grounds for the Third Preference Motion include the age and health of Solis, and the conviction of Burgher in the Criminal Action.

On October 1, Plaintiffs filed a motion titled as a “second amended” motion for preferential trial setting (the Fourth Preference Motion) which was also brought under Code of Civil Procedure sections 36 and 37, on the grounds of Solis’ age and health, and Burgher’s conviction in the Criminal Action. The Fourth Preference Motion was calendared for hearing October 25. Defendants filed separate oppositions to that motion.

On October 25, the court continued the hearing on the Fourth Preference Motion to November 8, to allow that motion to be heard concurrently with the Third Preference Motion.

On November 8, after a hearing, the court issued a minute order (the November 8 Order) granting the Fourth Preference Motion, and ordering the First, Amended First, Second, and Third Preference Motions off-calendar as moot. The court set a jury trial for February 13, 2025.

Also relevant to this proceeding, on November 21, 2024, the Uber Parties separately filed: (1) a motion for summary judgment or, in the alternative, summary adjudication as to all causes of action asserted against the Uber Parties by Solis and Alvarado (the Solis/Alvarado MSJ); (2) a motion for summary judgment or, in the alternative, summary adjudication as to all causes of action asserted in the FAC (the Uber MSJ); and (3) a motion for summary judgment or, in the alternative, summary adjudication as to the fourth cause of action and claim for punitive damages asserted in the FAC (the Punitive Damages MSJ) (collectively, the Uber Motions). The Uber Motions were calendared for hearing on February 7, 2025.

On November 25, Checkr filed a motion for summary judgment (the Checkr MSJ) which was also calendared for hearing on February 7, 2025.

Pursuant to various stipulations by the parties and court orders upon those stipulations, the hearings on the Uber Motions and the Checkr MSJ were continued to August 29, 2025.

On December 6, during a hearing on various discovery motions filed by Plaintiffs, Plaintiffs withdrew their Fourth Preference Motion, without prejudice, to allow the parties to proceed with discovery and address the issues in a reasonable fashion. Accordingly, the court vacated the jury trial set for February 13, 2025. (See Dec. 6, 2024, Minute Order.)

On July 24, 2025, Checkr filed a joint stipulation pursuant to which the parties agreed to continue the hearing on the Uber Motions to October 24, 2025, and to set a hearing on a future motion by Checkr for summary judgment on that same date.

On July 25, Checkr filed a motion for summary judgment or, in the alternative, summary adjudication as to all causes of action alleged in the FAC (the Checkr July MSJ) which was, pursuant to the stipulation described above, calendared for hearing on October 24, 2025.

On October 17, the Uber Parties filed a notice withdrawing the Uber MSJ.

On October 24, after a hearing, the court issued a minute order (the October 24 Order) noting the confused and convoluted record in this case resulting from missing and mislabeled filings and conflicting information appearing in those filings. To ensure accuracy in its records, the court stated in the October 24 Order, its understanding that the motions that remained on calendar for hearing included, as of that order, only the Solis/Alvarado MSJ, the Punitive Damages MSJ, and the Checkr July MSJ.

The October 24 Order also addressed the lodging by the parties of documents and materials in support of and in opposition to the Solis/Alvarado MSJ, the Punitive Damages MSJ, and the Checkr July MSJ under seal. For reasons further discussed in the October 24 Order, the court ordered any party who lodged any document or materials under seal as a basis for adjudication of the Solis/Alvarado MSJ, the Punitive Damages MSJ, or the Checkr July MSJ, to, on or before November 5, file and serve a “sealing statement” as to those documents or materials. The court continued the hearing on the Solis/Alvarado MSJ, the Punitive Damages MSJ, and the Checkr July MSJ to November 14, 2024, to permit the parties to file any necessary and appropriate sealing statements.

On November 3, Checkr filed a sealing statement as to the Checkr July MSJ.

On November 5, plaintiffs filed a sealing statement as to the Checkr July MSJ, and separately filed a sealing statement as to the Uber MSJ which, as noted above, was previously withdrawn by the Uber Parties.

The Uber Parties did not file a sealing statement with the court.

On November 14, after a hearing, the court issued a minute order directing the clerk of the court to permanently delete certain materials lodged under seal by Plaintiffs on October 10, 2025, as further described in that minute order, and to transfer certain other materials lodged under seal to the public file as described in that minute order, unless an appropriate motion to seal those records was filed and served on or before December 1, 2025.

On December 1, Checkr filed a motion for an order sealing documents and information submitted in connection with the Checkr July MSJ (the Checkr Motion to Seal). On that same day, the Uber Parties filed a joinder to the Checkr Motion to Seal, and separately filed a motion for an order sealing portions of their summary judgment filings (the Uber Motion to Seal.) The Checkr Motion to Seal and Uber Motion to Seal, which were opposed by Plaintiffs, were calendared for hearing on February 27, 2026.

On December 8, Plaintiffs filed a motion for summary adjudication (the Plaintiffs MSA) of the issue of whether the Uber Parties owe a non-delegable duty of due care to Plaintiffs under the “Motor Carrier of Property Permit Act.” (Notice at p. ii, ll. 7-9.) The Uber Parties have filed an opposition to the Plaintiffs MSA.

On February 4, 2026, Plaintiffs filed a motion labeled as a “third amended” motion for preferential trial setting pursuant to Code of Civil Procedure sections 36, subdivision (a), or 37 (the Fifth Preference Motion).  

On February 10, Plaintiffs filed a notice requesting that the Fifth Preference Motion be withdrawn, and separately filed a motion labeled as a “fourth amended” motion for preferential trial setting pursuant to Code of Civil Procedure sections 36, subdivision (a), or 37 (the Sixth Preference Motion). The Sixth Preference Motion is made on the same grounds as those described above in regard to the health and age of Solis, and Burgher’s criminal conviction. The Uber Parties and Checkr filed a joint opposition to the Sixth Preference Motion. Burgher separately filed an opposition to that motion.

On February 27, after a hearing, the court issued a minute order (the February Order) denying the Checkr Motion to Seal and the Uber Motion to Seal; directing the clerk of the court to transfer to the public file the documents lodged under seal by Plaintiffs on October 6, 2025, and described in that order; and directing the clerk of the court to permanently delete the records lodged under seal and described in the February Order, unless Checkr notifies the court, on or before March 9, 2026, that those records are to be filed unsealed. Further, the court continued the hearing on the Solis/Alvarado MSJ, the Punitive Damages MSJ, the Checkr July MSJ, and the Plaintiffs MSA to April 24, 2026.

On March 2, the Uber Parties filed a notice of appeal from the February Order.

On March 4, Checkr filed a notice of appeal from the February Order.

Analysis:

(1)       Procedural Matters

The court’s docket reflects that a hearing on a motion to seal is calendared for April 24, 2026. Apart from the Checkr Motion to Seal and Uber Motion to Seal discussed above, which the court denied pursuant to the February Order, the court is unaware of the filing of any other motion to seal by any party to this action. For these reasons, to the extent the court’s docket reflects that a motion to seal is set for hearing on April 24, 2026, the docket appears erroneous in that regard.

(2)       The Solis/Alvarado MSJ, the Punitive Damages MSJ, and the Checkr July MSJ

Noted above, the Uber Parties and Checkr have appealed from the February Order denying the Checkr Motion to Seal and the Uber Motion to Seal. “Except as provided in [Code of Civil Procedure] [s]ections 917.1 to 917.9, inclusive, and in Section 116.810, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a).)

“Indeed, [Code of Civil Procedure] section 916, as a matter of logic and policy, divests the trial court of jurisdiction over the subject matter on appeal—i.e., jurisdiction in its fundamental sense. [Citation.] The purpose of the automatic stay under section 916 is to preserve ‘the status quo until the appeal is decided’ [citation], by maintaining ‘the rights of the parties in the same condition they were before the order was made’ [citation]. Otherwise, the trial court could render the ‘appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196-198, fn. omitted.)

Notwithstanding whether the appeals from the February Order stay the proceedings upon the Solis/Alvarado MSJ, the Punitive Damages MSJ, or the Checkr July MSJ, the perfecting of those appeals stays the transfer to the public file, or permanent deletion, of the documents or records lodged under seal and described in the February Order. Considering that those documents and records which are the subject of the February Order were submitted as a basis for the adjudication of the Solis/Alvarado MSJ, the Punitive Damages MSJ, and the Checkr July MSJ, and directly affect the court’s determination of those motions, the court will, in the interests of judicial efficiency and to maintain the status quo until the appeals are decided, continue the hearing on those motions to August 7, 2026.

(3)       Plaintiffs’ Sixth Preference Motion

As the Fifth Preference Motion has been withdrawn by Plaintiffs and taken off-calendar, the court will address only the Sixth Preference Motion.

“At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference.” (Code Civ. Proc., § 36, subd. (c)(2).) “A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:

“(1) The party has a substantial interest in the action as a whole.

“(2) 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 its discretion, the court may also grant a motion for preference that is accompanied by clear and convincing medical documentation that concludes that one of the parties suffers from an illness or condition raising substantial medical doubt of survival of that party beyond six months, and that satisfies the court that the interests of justice will be served by granting the preference.” (Code Civ. Proc., § 36, subd. (d).)

“Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record.” (Code Civ. Proc., § 36, subd. (f).)

“Where a party meets the requisite standard for calendar preference under subdivision (a), preference must be granted. No weighing of interests is involved.” (Fox v. Superior Court (2018) 21 Cal.App.5th 529, 535 (Fox).) “Mere inconvenience to the court or to other litigants is irrelevant. [Citation.] Failure 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.” (Swaithes v. Superior Court (1989) 212 Cal.App.3d 1082, 1085.)

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).) A declaration submitted in support of a motion for preference under Code of Civil Procedure section 36, subdivision (a), “may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party.” (Code Civ. Proc., § 36.5; see also Fox, supra, 21 Cal.App.5th at p. 534 [physician’s declaration not required for a motion for mandatory trial preference].)

In support of the Sixth Preference Motion, Plaintiffs submit the declaration of their counsel, Douglas S. Wacker (attorney Wacker), who states that Solis was born on August 21, 1952, and is presently 73 years of age. (Wacker Decl., ¶ 5.) Attorney Wacker asserts that Solis is the mother of Silvia, and was financially dependent on Silvia for her basic needs. (Wacker Decl., ¶ 6.)

Attorney Wacker states that, after the court granted the Fourth Preference Motion, Solis has required additional acute care including a visit to the emergency department on December 10, 2024, for headache, pressure and dizziness after sustaining a fall; being documented as a high fall-risk; and hospitalization from May 2 through May 5, 2025, for a dog bite that developed into cellulitis/tenosynovitis. (Wacker Decl., ¶ 11(a), (b).) Solis has had multiple significant fall incidents requiring emergency medical services and hospital visits within the past year, one of which required dental surgery to repair broken teeth. (Wacker Decl., ¶ 8.) In addition, Solis experienced delirium as a result of a spinal fusion surgery, and had to be restrained by hospital staff. (Wacker Decl., ¶ 9.)

Attorney Wacker asserts that Solis’ health conditions and memory loss have continued to worsen during this litigation and are of concern to her family members. (Wacker Decl., ¶ 10.) Attorney Wacker further asserts that Solis’ prognosis is unlikely to get better as most of her conditions are related to her age, and may may become significantly worse. (Wacker Decl., ¶ 11.) The additional hospital visits are consistent with Solis’ longstanding conditions which include balance problems, anticoagulation therapy, and mobility limitations. (Wacker Decl., ¶ 12.)

Attached to the declaration of attorney Wacker are copies of the court order entered on November 14, 2024, granting the Fourth Preference Motion; a copy of Plaintiffs’ Fourth Preference Motion; and various documents filed in the Criminal Action including the complaint, minute orders, and a plea form, among other things. (Wacker Dec., ¶¶ 13-14 & exhibits 1-2.)

The information and evidence presented in attorney Wacker’s declaration and described above are sufficient for present purposes to show Solis’ age and present medical condition. (Fox, supra, 21 Cal.App.5th at p. 534.) Even if the court were to assume without deciding that Solis has suffered some pecuniary loss and has standing to pursue the claims alleged by Solis in this action, such that Solis has a substantial interest in the action as a whole, the Sixth Preference Motion fails to show, at this stage of the proceedings and for all reasons discussed herein, that the health or medical condition of Solis justifies a preference to prevent any prejudice to that interest.

The court recognizes that in granting the Fourth Preference Motion, the court determined, for reasons further discussed in the November 8 Order, that a trial preference was appropriate and warranted. Considering the events occurring after the court issued the November 8 Order, including Plaintiffs’ withdrawal of the Fourth Preference Motion as further discussed above which Plaintiffs do not dispute, and upon further consideration of the matter, the court finds that the granting of the Fourth Preference Motion was improvident.

The court further notes that the Sixth Preference Motion is made on the same grounds as those advanced in the Fourth Preference Motion. As to any new information or evidence presented in the Sixth Preference Motion in regard to the health or medical condition of Solis as further described above, that new information and evidence does not show that Solis suffers from a terminal illness, and fails to clearly and convincingly show or raise a substantial medical doubt of Solis’ survival beyond six months, or why Solis may not survive any delay. (Fox, supra, 21 Cal.App.5th at p. 535; see also Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1199 [general discussion].) For these and all further reasons discussed above, the Sixth Preference Motion fails to show why a trial preference is presently necessary to prevent prejudice to any interest of Solis in this litigation.

Under the totality of the circumstances present here, and upon further consideration of the matters further discussed above, the court finds that Plaintiffs have failed to meet their burden to show that a trial preference is presently necessary or justified to prevent prejudice to any interest of Solis in this litigation. For these and all further reasons discussed above, the court will deny the Sixth Preference Motion. Notwithstanding the court’s denial of that motion, the court is willing to consider Solis’ age and medical condition when setting a trial date.

(4)       Plaintiffs MSJ

The court will continue the hearing on the Plaintiffs MSJ to June 12, 2026.