Hon. Lee S. Arian, Dept 27 

 

MOTION FOR SUMMARY JUDGMENT¿OR SUMMARY ADJUDICATION 

Hearing Date: 11/12/24¿ 

CASE NO./NAME: 21STCV37594 ANNA VASERFIRER, et al. vs UBER TECHNOLOGIES, INC et al. 

Moving Party: Defendant Uber 

Responding Party: Plaintiff¿ 

Notice: Sufficient¿ 

Ruling: MOTIONS FOR SUMMARY ADJUDICATION ARE GRANTED; LEAVE TO AMEND IS DENIED AT THIS TIME BUT A SEPARATE MOTION MAY BE FILED 

 

Background 

This action arises from a vehicle-on-pedestrian collision on August 2, 2021 (the "Incident"). Defendant Oscar Moquete ("Moquete") who was driving the vehicle rented from Avis, was alleged to be in the scope of his employment with Uber. Plaintiffs are Anna Vaserfirer, the pedestrian struck by Moquete, and her son, Arkady Vaserfirer, who witnessed the collision. Plaintiffs bring four causes of action: motor vehicle negligence, general negligence, negligent supervision, and negligent entrustment. Uber now moves the Court for Summary Judgment; alternatively, it moves for Summary Adjudication on each cause of action, as well as on the issue of punitive damages, as follows:  

Legal Standard¿ 

In reviewing a motion for summary judgment or adjudication, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”¿(Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)¿ 

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”¿(Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)¿A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”¿(Code Civ. Proc., § 437c, subd. (p)(2).)¿If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)¿Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)¿ 

¿ To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”¿(Aguilar, supra, 25 Cal.4th at p. 854.)¿It is insufficient for the defendant to merely point out the absence of evidence.¿(Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)¿The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”¿(Ibid.)¿The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.¿(Aguilar, supra, 25 Cal.4th at p. 855.)¿ 

¿ “Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”¿(Ibid.)¿“If the plaintiff cannot do so, summary judgment should be granted.”¿(Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)¿ 

¿ The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.”¿(Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence.¿While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.¿[Citation.]¿Only when the inferences are indisputable may the court decide the issues as a matter of law.¿ If the evidence is in conflict, the factual issues must be resolved by trial.”¿(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)¿Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.¿[Citation.]¿Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)¿ 

Evidentiary Ruling 

Plaintiff’s Objection No. 1 is overruled. Defendant’s Objections Nos. 8, 10, 11, 13, and 14 are overruled; Defendant’s Objection No. 24 is sustained, for the reason further discussed below. The Parties did not make any other objections to evidence that were material to the Court’s ruling. (CCP § 437c(q).)¿ 

Undisputed Facts 

• “open” status (online and available to receive a ride request)  

• “en route” status (en route to pick up a rider after trip request was accepted) 

• “on trip” status (transporting a rider after pick up); or  

• “offline” status (not online within the Driver App and not available to receive a ride request in the Driver App). 

Vicarious Liability 

On the date of the Incident, Moquete provided transportation services utilizing the Uber Rides platform. (Tate Decl. ¶ 4, Ex. 3, Gaddis Decl. ¶¶ 9-10, Ex. A.) At approximately 6:03 p.m. on that date, Moquete went offline at GPS coordinates 34.096382 latitude and -118.36299 longitude. (Tate Decl. ¶ 4, Ex. 3, Gaddis Decl. ¶ 10, Ex. A.) Moquete did not become “open” in the Driver App again until approximately 10:22 p.m. at GPS coordinates 33.978016 latitude and -118.44375 longitude. (Tate Decl. ¶ 4, Ex. 3, Gaddis Decl. ¶ 10, Ex. A.) 

Plaintiffs allege they were injured while walking across Fairfax Avenue on Waring Avenue in Los Angeles when Moquete drove the Toyota Corolla into the intersection at or soon after 6:35 p.m. At the time of the Incident, Moquete was alone in a rented Toyota Corolla, was not using the Driver App, was offline, and was unavailable to receive trip requests. (Ex. 3, Gaddis Decl. ¶ 11, Ex. 12, Deposition of Officer Tilakmonkul, 25:21-24; 26:4-7; 43:2-24; 51:8-22; Ex. 10, Deposition of Arkady Vaserfirer, 76:13-77:3; 78:5-17; 272:3-273:6.) When questioned by the police, Moquete told investigating officers he was driving to see his father at the time of the Incident. (Tate Decl. ¶ 13, Ex. 12, Deposition of Officer Tilakmonkul, 25:21-24; 42:7-14.) Moreover, Plaintiff’s June 18, 2024, responses to Defendant’s Requests for Admission Nos. 62-64 (Ex. 5), concerning whether Moquete was en route to see his father at the time of the accident, were factually devoid and sufficient to shift the burden on this issue. 

Overall, Defendant has presented sufficient evidence showing that he was offline, unavailable to receive trips, and on a personal errand to shift the initial burden, similar to Marez v. Lyft, Inc. (2020) 48 Cal.App.5th 569, where purely personal activities unrelated to Lyft’s business did not create a "nexus" sufficient to impose vicarious liability against Defendant. (Id. at pp. 582-583.) 

Triable Issue of Fact 

Plaintiffs raises two arguments against Defendant’s motion for summary judgment as to vicarious liability. 

First, Plaintiffs argue that Defendant Moquete’s discovery responses serve as an admission that he was acting within the scope of his employment when he struck Plaintiff Anna Vaserfirer. (PCOE 766–771; PUMF #39.) Specifically, Moquete admitted he was acting within the course and scope of his employment at the time of the Incident. (PCOE 767–768.) However, these discovery responses can only raise a triable issue of fact against the responding party—Moquete—and are not binding on Uber. Notably, Plaintiffs does not contest this point. Plaintiffs rely on Inzunza v. Naranjo, which does not address summary judgment and does not support Plaintiffs’ contention that a defendant’s admissions can automatically raise a triable issue of fact regarding vicarious liability for another party. Furthermore, Moquete’s admission that he was acting within the scope of employment is conclusory and lacks factual support. When offered in a declaration opposing summary judgment, legal conclusions are insufficient to establish triable issues of fact. C. L. Smith Co. v. Roger Ducharme, Inc. (1977) 65 Cal.App.3d 735, 743. The court finds that Plaintiff did not raise a triable issue of fact based on Defendant’s Moquete’s RFA responses. 

Second, Plaintiff argues that there is evidence that, under Uber’s definitions, the collision occurred during Moquete’s “shift.” (PCOE 337; PUMF #40.) Uber drivers can log in and out of the app between successive rides, and Uber employees have testified under oath elsewhere that a “shift” is defined as “a period during which the Driver made themselves available to accept ride requests, not interrupted by an offline period exceeding eight hours.” (Ibid.) Under this definition, Plaintiff contends that Moquete was still on his “shift” at the time of the collision. 

However, Uber’s use of the term “shift” in the provided document is a data construct intended for tracking driver availability patterns, not to establish legal scope of employment. The data scientist defined "shift" to encompass all trips within a continuous availability period without an eight-hour break. Uber’s analysis captures operational patterns but does not address whether specific actions were within the scope of employment or served Uber’s business interests. Thus, “shift” in this context is a statistical convenience rather than a measure of employer control or intent, and it does not establish that all driver behavior within this period falls under Uber’s legal scope of employment.  

Furthermore, case law makes clear that an employer is not strictly liable for all actions of its employees during working hours. As noted in Farmers Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004, “if the misconduct is not an ‘outgrowth’ of the employment, the employee is not acting within the scope of employment” (11 Cal.4th at 1005). 

Courts have consistently exempted purely personal conduct from the scope of employment. As stated in Sunderland v. Lockheed Martin Aeronautical Systems Support Co. (2005) 130 Cal.App.4th 1, 11, “where an employee’s activity does not come within the scope of employment, it is not part of the special employer-employee relationship. If an employee’s act is purely personal, it is not ‘typical of or broadly incidental to the employer’s enterprise.’ … If the main purpose of the injury-producing activity ‘was the pursuit of the employee’s personal ends, the employer is not liable.’” 

Even if Plaintiff’s argument regarding the definition of “shift” were accepted, Plaintiff would still need to show that Moquete was not engaged in purely personal conduct and that Uber somehow benefited from Moquete’s actions. Defendant has shifted the burden by presenting evidence that Moquete was engaged in a personal activity unrelated to Uber’s business at the time of the incident, was offline, and was not accepting any ride requests from 6 p.m. to 10 p.m. Plaintiff has presented no evidence to raise a triable issue of fact regarding this purely personal conduct exemption or to show how Moquete’s conduct provided any incidental benefit to Uber while he was offline. Accordingly, summary adjudication as to motor vehicle negligence and general negligence based on vicarious liability is GRANTED. 

Negligent Hiring, Retention and Supervision 

Defendant relies on the same facts analyzed in the vicarious liability section to meet its initial burden regarding negligent hiring, retention and supervision (PUMP 98-103), asserting that the incident arose from a personal matter unrelated to the scope of employment. Defendant argues, consistent with Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1341, that a demonstrable connection between employment and the injured party is required for claims of negligent hiring, retention, or supervision. Defendant has shifted the initial burden by showing that Moquete was en route to pick up his father at the time of the incident, was off-duty and unable to receive ride requests from Uber. Plaintiff’s opposition fails to address Defendant’s argument relating to this cause of action, which may be construed as a concession that no meritorious arguments exist. (See Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483, fn. 7 [lack of opposition waives arguments]; Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.) Accordingly, the Court finds that Plaintiff fails to raise a triable issue of fact on this cause of action, and summary adjudication is granted.