Tentative Ruling: Estate of Silvia Manzo Velasco et al vs Uber Technologies Inc et al
Case Number
24CV03780
Case Type
Hearing Date / Time
Fri, 08/07/2026 - 10:00
Nature of Proceedings
Motions for Summary Judgment
Tentative Ruling
(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 January 22, 2027.
(2) For the reasons stated herein, the motion of plaintiffs for summary adjudication is denied.
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 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” (TNC) 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.) Portier does business as “Uber Eats”, which is a division of Uber. (Id. at ¶ 16.) Uber and Portier (collectively, the Uber Parties) employ drivers through the Uber App and the Uber Eats App to facilitate services to their customers. (Ibid.)
The Uber Parties perform background investigations of their drivers using Checkr, Inc., (Checkr), as required by Public Utilities Code section 5445.2 for all TNCs. (FAC, ¶ 19.) Checkr is a third-party consumer reporting agency. (Id. at ¶¶ 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 of Burgher 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; (2) negligent hiring, supervision, or retention (against Uber, Portier, and Checkr, only); (3) wrongful death; and (4) survival action.
On June 6, 2023, Plaintiffs filed their operative FAC against defendants asserting the same four causes of action against the same defendants as further 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, 2024, 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 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, 2024, 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, the court continued the hearings on the Uber Motions and the Checkr MSJ to August 29, 2025.
On July 24, 2025, a joint stipulation was filed in this case pursuant to which the parties agreed to continue the hearing on the Uber Motions to October 24, 2025.
On July 25, 2025, 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 calendared for hearing on October 24, 2025.
On October 17, 2025, the Uber Parties filed a notice of withdrawal of the Uber MSJ.
On October 24, 2025, after a hearing, the court issued a minute order noting the confused and convoluted record in this case resulting from missing and mislabeled filings and conflicting information appearing in those filings. The court stated its understanding that the Solis/Alvarado MSJ, the Punitive Damages MSJ, and the Checkr July MSJ, only, remained on calendar for hearing. Further, the court ordered any party who lodged materials under seal as a basis for adjudication of those motions to, on or before November 5, 2025, file and serve a “sealing statement” describing those materials. The court continued the hearing on the Solis/Alvarado MSJ, the Punitive Damages MSJ, and the Checkr July MSJ to November 14, 2025.
On November 3, 2025, Checkr filed a sealing statement as to the Checkr July MSJ.
On November 5, 2025, plaintiffs filed a sealing statement as to the Checkr July MSJ.
The Uber Parties did not file a sealing statement with the court.
On November 14, 2025, after a hearing, the court issued a minute order directing the clerk of the court to, among other things, transfer certain materials lodged under seal as a basis for adjudication of the Checkr July MSJ to the public file unless an appropriate motion to seal those materials was filed and served by December 1, 2025.
On December 1, 2025, Checkr filed a motion for an order sealing material submitted as a basis for adjudication of the Checkr July MSJ (the Checkr Motion to Seal); and the Uber Parties filed a joinder to the Checkr Motion to Seal and separately filed a motion (the Uber Motion to Seal) for an order sealing material submitted as a basis for adjudication of the Checkr MSJ. Plaintiffs opposed the Checkr Motion to Seal and Uber Motion to Seal, each of which were calendared for hearing on February 27, 2026.
On December 8, 2025, Plaintiffs filed a motion for summary adjudication (the Plaintiffs MSA) which was calendared for hearing on February 27, 2026. The Uber Parties have filed an opposition to the Plaintiffs MSA.
On February 27, 2026, after a hearing, the court issued a minute order (the February Order) denying the Checkr Motion to Seal and the Uber Motion to Seal. Further, and for the reasons further discussed in the February Order, 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, 2026, the Uber Parties filed a notice of appeal from the February Order.
On March 4, 2026, Checkr filed a notice of appeal from the February Order.
On April 24, 2026, after a hearing, the court entered a minute order (the April Order) adopting its tentative ruling on the Solis/Alvarado MSJ, the Punitive Damages MSJ, the Checkr July MSJ, the Plaintiffs MSA, and a motion filed by Plaintiffs on February 10, 2026, for preferential trial setting (the Sixth Preference Motion), as follows and with one amendment discussed below:
“(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.”
Noted above, the court amended its tentative ruling to continue the Plaintiffs MSA to June 5, 2026, instead.
On May 15, 2026, Plaintiffs submitted a “Notice of Filing Letter Brief” requesting the court’s further consideration of selected aspects of the April Order. Attached to that notice is a letter from Plaintiffs’ counsel addressed to this court (the Letter Brief), in which Plaintiffs request that the court exercise its discretion to reconsider the denial of Plaintiffs’ fourth motion for preferential trial setting, and the continuance of the Solis/Alvarado MSJ, the Punitive Damages MSJ, the Checkr July MSJ, and the Plaintiffs MSA. No party has a response to the Letter Brief.
Analysis:
(1) The Solis/Alvarado MSJ, the Punitive Damages MSJ, and the Checkr July MSJ
Absent information or evidence showing that the appeals from the February Order described above and in the April Order set forth above have been decided, the same reasoning and analysis apply. For the same reasons described in the April Order set forth above, the court will, in the interests of judicial efficiency and to maintain the status quo until those appeals are decided, continue the hearing on the Solis/Alvarado MSJ, the Punitive Damages MSJ, and the Checkr July MSJ to January 22, 2027.
(2) Plaintiffs MSA
“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).)
A motion for summary adjudication “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The party moving for summary judgment “bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Id. at p. 845.)
Relevant here, “summary judgment law in this state no longer requires a plaintiff moving for summary judgment to disprove any defense asserted by the defendant as well as prove each element of his own cause of action.” (Aguilar, supra, 25 Cal.4th at p. 853.) Instead, a plaintiff meets their burden of showing that there is no defense to a cause of action “if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(1).) “[I]f a plaintiff who would bear the burden of proof by a preponderance of evidence at trial moves for summary judgment, he must present evidence that would require a reasonable trier of fact to find any underlying material fact more likely than not—otherwise, he would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar, supra, 25 Cal.4th at p. 851, original italics.)
The Plaintiffs MSA seeks summary adjudication of an issue of duty which is stated in the notice of that motion as follows: “IN OPERATING THE UBER EATS PLATFORM, UBER TECHNOLOGIES, INC. AND PORTIER, LLC, OWED A NON-DELEGABLE DUTY OF DUE CARE TO THE GENERAL PUBLIC, INCLUDING PLAINTIFFS AND DECEDENT SILVIA VELASCO, UNDER THE MOTOR CARRIER OF PROPERTY PERMIT ACT.” (Notice at p. ii, ll. 7-9, capitalization unchanged.)
In the memorandum submitted in support of the motion, Plaintiffs contend that Burgher is, for purposes of the Motor Carriers of Property Permit Act, a “motor carrier of property” and “for-hire driver”, and that the Uber Parties are “entities that contract with, engage, and direct such for-hire motor carriers of property”, as those terms are defined in that statute. Plaintiffs further contend that by operating and directing a delivery business that uses motor vehicles to transport food and other property on California public highways for compensation, Burgher and the Uber Parties owe a statutory, nondelegable duty to members of the motoring public to use and operate those vehicles in compliance with the permit, identification, safety, and oversight requirements of the Motor Carriers of Property Permit Act, and that this duty cannot be evaded by labeling drivers as independent contractors or delegating onboarding and safety-related functions to third parties. (Memorandum at pp. 1-2.)
In their opposition to the Plaintiffs MSA, the Uber Parties assert that the FAC does not mention the Motor Carriers of Property Permit Act, does not assert any claims based upon that statute, and does not allege facts showing that Uber or Burgher were subject to or violated any provisions of the Motor Carriers of Property Permit Act. For these reasons, the Uber Parties contend, Plaintiffs are not entitled to summary adjudication of the issue of whether the Motor Carriers of Property Permit Act gives rise to a duty of care owed by Uber, including as to any facts not mentioned or pleaded in the FAC.
In their reply, Plaintiffs argue that the cause of action for negligence asserted in the FAC arises from the operation by the Uber Parties of a commercial delivery enterprise on public roadways; that Plaintiffs may rely on statutes as sources of duties and standards of care within that cause of action; that the Plaintiffs MSA does not seek to adjudicate a cause of action under the Motor Carriers of Property Permit Act; and that Plaintiffs instead seek summary adjudication of an element of their negligence cause of action in regard to whether the Uber Parties owed a duty of care to the motoring public under the permitting scheme set forth in the Motor Carriers of Property Permit Act.
“It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) “Summary judgment cannot be granted on a ground not raised by the pleadings.” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663 (Bostrom).) “Upon a motion for summary judgment, amendments to the pleadings are readily allowed. [Citation.] If plaintiff wishes to expand the issues presented, it is incumbent on plaintiff to seek leave to amend the complaint either prior to the hearing on the motion for summary judgment, or at the hearing itself.” (Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 (Laabs).)
“The role of the pleadings in measuring materiality is supplemented by rules directly applicable to a summary judgment proceeding. The parties must submit ‘separate statements’ identifying each of the material facts in dispute with reference to the supporting evidence. [Citation.] The motion ... must be supported by facts in the form of ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.’ [Citation.] In a properly pleaded case this showing addresses the matters of fact put in issue by the pleadings, for properly drafted pleadings aver the ultimate facts which constitute the cause of action or defense thereto. [Citation.] In a summary judgment proceeding the factual submissions of the parties must track these averments by providing evidence of the ultimate facts averred. Because of this relationship, in the absence of an appropriate objection, some defects in the pleading of an ultimate fact may be remedied by resort to a factual showing in the summary judgment proceeding. In this manner the pleadings may be read together with the factual showings in the summary judgment proceeding for purposes of discerning what is in issue.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382.)
The Motor Carriers of Property Permit Act or “MCPPA” is codified as Vehicle Code section 34600 et seq. “With the adoption of the MCPPA in 1996, responsibility for the regulation of motor carriers of property in California was transferred from the Public Utilities Commission (PUC) to the [California Department of Motor Vehicles or] DMV and the California Highway Patrol (CHP). The DMV is now responsible for the development and enforcement of the MCPPA and is required to promulgate necessary regulations, while the CHP is responsible for motor vehicle safety regulations.” (Hill Brothers Chemical Co. v. Superior Court (2004) 123 Cal.App.4th 1001, 1005; see also Allied Premier Ins. v. United Financial Casualty Co. (2023) 15 Cal.5th 20, 30 [the MCPPA “transfer[s] primary regulatory authority over commercial truckers to the DMV”].)
Section 34620 of the MCPPA provides: “Except as provided in subdivision (b) and Section 34622, a motor carrier of property shall not operate a commercial motor vehicle on any public highway in this state, unless it has complied with Section 34507.5 and has registered with the department its carrier identification number authorized or assigned thereunder, and holds a valid motor carrier permit issued to that motor carrier by the department.” (Veh. Code, § 34620, subd. (a).) That section further provides: “A person shall not contract with, or otherwise engage the services of, a motor carrier of property, unless that motor carrier holds a valid motor carrier of property permit issued by the department.” (Veh. Code, § 34620, subd. (b).)
The separate statement filed in support of the Plaintiffs MSA sets forth 37 facts (individually, the UMF) that Plaintiffs concede relate to the issue of duty described above that is the subject of the Plaintiffs MSA and “that could make a difference in the disposition of the motion.” (Cal. Rules of Court, rule 3.1350(a)(2).) Those facts include that on October 26, 2021, neither Burgher nor the Uber Parties had a valid “CHP-issued California Carrier Identification Number” (CA#) or a “DMV-issued California Motor Carrier Permit” (MCP); that the Uber Parties did not require Burger to provide proof of, and failed to verify that Burgher held, an MCP; that the Uber Parties had no internal process to monitor or audit whether drivers performing Uber Eats deliveries held a valid MCP; and that, at the time of the subject incident that caused Silvia’s death, the Uber Parties had contracted with Burgher to transport property for compensation despite Burgher not holding a valid MCP. (Sep. Stmt. at p. 2, ¶¶ 11, 12, & UMF nos. 20-22 & 24-25.)
A complaint “serves to frame and limit the issues [citation] and to apprise the defendant of the basis upon which the plaintiff is seeking recovery [citations].” (Committee On Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211–212, superseded by statute on another ground as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242 [noting that “the complaint should set forth the ultimate facts constituting the cause of action, not the evidence by which plaintiff proposes to prove those facts”].)
A complaint must include “[a] statement of the facts constituting the cause of action, in ordinary and concise language.” (Code Civ. Proc., § 425.10, subd. (a)(1).) “Negligence may be generally pleaded, but there are limits to the generality with which the plaintiff is allowed to state a cause of action. The complaint must indicate the acts or omissions which the plaintiff claims were negligently performed.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 60.) Also relevant here, a complaint alleging a statutory violation generally must “state with reasonable particularity the facts supporting the statutory elements of the violation.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 619.)
Though the Plaintiffs MSA argues that the Uber Parties and Burgher were subject to and owed a nondelegable statutory duty to comply with the provisions of the MCPPA, and notwithstanding whether the FAC avers facts sufficient to show that Burgher or the Uber Parties are a motor carrier of property or a person who contracted with a motor carrier of property for purposes of the MCPPA (and the court presently makes no findings in that regard), wholly absent from the FAC are any averments of ultimate fact in regard to whether Burgher or the Uber Parties were subject to the provisions of the MCPPA, or required to obtain or possess, and did not possess, a valid CA# or MCP. Instead, and as further discussed and detailed above, the FAC speaks only of the outsourcing by the Uber Parties of background checks to Checkr; of why those background checks fail to identify or uncover all criminal conduct and driver histories including that of Burgher; of Burgher entering into an agreement with the Uber Parties to transport passengers and deliver food; of the Uber Parties filing to train or supervise Burgher; and of Burgher working for compensation as a driver for Uber Eats when he drove his personal vehicle while intoxicated.
The court acknowledges the allegations of the FAC which aver that “Uber has been assigned Carrier lD PSGOO38150 by the California Public Utilities Commission”, and that the Uber Parties use that Carrier ID to operate in California. (FAC, ¶ 17.) The FAC also speaks of insurance carried by Uber as a TNC pursuant to the Public Utilities Code, and of the background investigations required under the Public Utilities Code for TNCs. (FAC, ¶¶ 18-19.) Considering that the MCPPA transfers responsibility for the regulation of motor carriers of property from the Public Utilities Commission to the DMV and the CHP as further discussed above, and that the FAC does not allege or mention whether Burgher or the Uber Parties had a valid CA# or MCP or complied with the MCPPA, the present record shows that the issue that is the subject of the Plaintiffs MSA is not raised by the FAC.
“The complaint limits the issues to be addressed at the motion for summary judgment.” (Laabs, supra, 163 Cal.App.4th at p. 1258.) Furthermore, a “separate statement of material facts is not a substitute for an amendment of the complaint.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1201, fn. 5.) Because the FAC does not, for all reasons discussed above, factually raise the issue of whether Burgher and the Uber Parties owe any duties under the MCPPA, including in regard to whether those parties were required to but failed to obtain a CA# or MCP, the allegations Plaintiffs seek to introduce in the Plaintiffs MSA are different from and not encompassed in the FAC. Under these circumstances, and as Plaintiffs have not sought leave to amend their FAC to add allegations giving rise to any duty under the MCPPA, “’there is no occasion to inquire about possible issues not raised by the pleadings.’” (Krupp v. Mullen (1953) 120 Cal.App.2d 53, 57.)
Even if Plaintiffs could present reasoned factual or legal argument showing why the FAC raises the issue that is the subject of the Plaintiffs MSA, that motion “must completely dispose of the issue of duty.” (Linden Partners v. Wilshire Linden Associates (1998) 62 Cal.App.4th 508, 522.) “The purpose of the enactment of Code of Civil Procedure section 437c, subdivision (f) was to stop the practice of piecemeal adjudication of facts that did not completely dispose of a substantive area.” (Catalano v. Superior Court (2000) 82 Cal.App.4th 91, 97.)
The Plaintiffs MSA argues that under Evidence Code section 669, a statutory violation may establish negligence per se as to duty and standard of care in cases where a defendant violates a statute, the violation proximately caused death or injury, the death or injury resulted from an occurrence the statute was designed to prevent, and the plaintiff is among the class of persons the statute was designed to protect.
“Whether a duty should be imposed on a defendant depends on a variety of policy considerations, known as the Rowland factors. [Citation.] These factors include, inter alia, the foreseeability of harm to the plaintiff, the burden to the defendant and the consequences to the community of imposing the duty. [Citations.] ‘The court’s task in determining whether a duty exists “is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” [Citation.]’ [Citation.] ‘Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.’ [Citations.]” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446–447.)
Relevant here, “[t]he negligence per se doctrine is codified in Evidence Code section 669, subdivision (a), under which negligence is presumed if the plaintiff establishes four elements: (1) the defendant violated a statute, ordinance, or regulation; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of 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.” (Alcala v. Vazmar Corp. (2008) 167 Cal.App.4th 747, 755.)
As further discussed above, the negligent conduct at issue in the FAC includes, among other conduct, an alleged failure by the Uber Parties or Checkr to discover, through background checks, Burgher’s prior convictions; the purported failure by the Uber Parties to train or supervise Burgher; and Burgher’s use of his vehicle to perform a food delivery through the Uber Eats platform while intoxicated. The Plaintiffs MSA fails to explain why that conduct, or any other conduct alleged in the FAC, constitutes a violation of the MCPPA by Burgher or the Uber Parties, or why the requirements of that statute were designed to prevent the type of conduct alleged in the FAC, including in regard to the purportedly insufficient background check or the operation of a commercial vehicle by a for hire motor carrier of property while intoxicated.
For all reasons discussed above, the court will deny the Plaintiffs MSA. (Code Civ. Proc., § 437c, subd. (f)(1); Bostrom, supra, 35 Cal.App.4th at p. 1663.)
Evidentiary objections:
The Uber Parties submit 34 objections to material appearing in Plaintiffs’ compendium of evidence, including as to the entirety of exhibits 3, 5 through 11, 14 through 29, 35, and 36; and to matters contained in the transcript of the deposition of Burgher. (Uber Parties Objections to Plaintiffs’ Compendium of Evidence nos. 1-34.)
As to the objections to statements or materials appearing in the transcript of Burger’s deposition, the California Rules of Court require that written objections to evidence “[q]uote or set forth the objectionable statement or material[.]” (Cal. Rules of Court, rule 3.1354(b)(3).) Though the written objections of the Uber Parties include citations to where each matter objected to appears in that transcript, the Uber Parties have failed to quote or set forth the objectional material itself. This failure to quote the objectionable material forces the court to locate the cited portions of the transcript, and to guess whether the Uber Parties object to that material in whole or in part. For these reasons, the court may disregard those objections for failure to comply with the formatting rules set forth in California Rules of Court, rule 3.1354(b)(3). (Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 8 [a trial court may decline ruling on improperly formatted objections].)
Notwithstanding the deficiencies in the written objections of the Uber Parties discussed above, “[i]n granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion.” (Code Civ. Proc., § 437c, subd. (q).) The court does not deem the evidence objected to by the Uber Parties material to its disposition of the Plaintiffs MSA.
With their reply, Plaintiffs submit written objections to material contained in the transcript of the deposition of Jason Phulps, who is the CHP’s person most qualified. (Uber Parties Compendium of Evidence, exhibit B.) As Plaintiffs assert multiple objections to multiple statements or material appearing in that transcript, the same or similar reasoning and analysis apply. (See Pl. Objections to Evidence nos. 1-5.) For all reasons discussed above, Plaintiffs’ objections fail to comply with the format set forth in California Rules of Court, rule 3.1354, and force the court to guess which of the multiple objections apply to each of the multiple quoted statements or material. Notwithstanding these deficiencies, the court does not deem the evidence objected to by Plaintiffs material to its disposition of the Plaintiffs MSA.
(3) The Letter Brief
Plaintiffs do not dispute, and appear to concede, that the Letter Brief was not filed within the time prescribed in Code of Civil Procedure section 1008, and is not “based upon new or different facts, circumstances, or law[.]” (Code Civ. Proc., § 1008, subd. (a).) The Letter Brief also does not persuade the court that the April Order is erroneous. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 [general discussion].) Under these circumstances, the court declines to reconsider the ruling set forth in the April Order.