Case 2:17-cv-02550-DMG-JEM Document 21 Filed 09/14/17 Page ... · establishing a cause of action for breach of contract, fraudulent concealment, conversion, violations of the Unfair

DEFENDANTS’ NOTICE OF MOTIONAND MOTION TO DISMISS

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BOCKIUS LLP ATTORNEYS AT LAW

MORGAN, LEWIS &BOCKIUS LLP

ATTORNEYS AT LAW


ATTORNEYS AT LAW

MORGAN, LEWIS & BOCKIUS LLPMolly M. Lane (Bar No. 181232) [email protected] One Market, Spear Street Tower San Francisco, CA 94105 Tel: +1.415.442.1000 Fax: +1.415.442.1001

MORGAN, LEWIS & BOCKIUS LLP Jason S. Mills (Bar No. 225126) [email protected] V. Marra III (Bar No. 238181) [email protected] Nicholas E. Frontera (Bar No. 307479)[email protected] 300 South Grand Avenue Twenty-Second Floor Los Angeles, CA 90071-3132 Tel: +1.213.612.2500 Fax: +1.213.612.2501

Attorneys for Defendants RASIER, LLC, RASIER-CA, LLC and UBER TECHNOLOGIES, INC.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

SOPHANO VAN, individually and on behalf of all others similarly situated,

Plaintiff,

v.

RASIER, LLC, a Limited Liability Company; RASIER-CA, LLC., a Limited Liability Company; and UBER TECHNOLOGIES, INC., a corporation; DOES 1 through 50, inclusive,

Defendants.

Case No. 2:17-cv-02550-DMG-JEM

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS SECOND AMENDED CLASS ACTION COMPLAINT [Filed Concurrently with Supporting Request for Judicial Notice; Frontera Declaration; [Proposed] Orders; Defendants’ Notice of Motion and Motion to Stay Second Amended Complaint and Supporting Documents Thereto] Date: December 1, 2017 Time: 9:30 a.m. Hon. Dolly M. Gee Place: Courtroom 8C

Complaint Filed: April 3, 2017

Case 2:17-cv-02550-DMG-JEM Document 21 Filed 09/14/17 Page 1 of 30 Page ID #:124

2 DEFENDANTS’ NOTICE OF MOTIONAND MOTION TO DISMISS

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NOTICE OF MOTION AND MOTION

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE THAT on December 1, 2017 at 9:30 a.m., or as

soon thereafter as this matter may be heard before the Honorable Dolly M. Gee,

U.S. District Court Judge, in the above-entitled Court, located at 350 West 1st

Street, Courtroom 8C, Los Angeles, California, 90012, Defendants Rasier, LLC

(“Rasier”), Rasier-CA, LLC (“Rasier-CA”), and Uber Technologies, Inc. (“Uber

Technologies,” and collectively with Rasier and Rasier-CA, “Defendants” or

“Uber”), will and hereby do move this Court for an order dismissing the Second

Amended Class Action Complaint (“SAC”) of Plaintiff Sophano Van, on behalf of

himself and others similarly situated (“Plaintiff”). Pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure (“FRCP”), Defendants move to dismiss the SAC

in its entirety as to all Defendants because Plaintiff has not alleged any facts

establishing a cause of action for breach of contract, fraudulent concealment,

conversion, violations of the Unfair Competition Law, or violations of the

California Labor Code.

The motion is based on this Notice of Motion and Motion, the accompanying

Memorandum of Points and Authorities, and Declaration of Nicholas Frontera (and

accompanying exhibits) filed concurrently herewith, as well as the SAC, oral

argument of counsel, and such arguments and authorities as may be presented at or

before the hearing.

Pursuant to Local Civil Rule 7-3, Defendants’ counsel contacted Plaintiff’s

counsel to meet and confer regarding the arguments made in this Motion. Plaintiff’s

counsel did not respond to Defendants’ counsels’ multiple e-mails and calls, which

were made on September 7, 8, and 12, until September 14th. On September 14,

2017, Plaintiff’s counsel notified Defendants’ counsel that no further meet and

confer was necessary given that the parties discussed many of the issues raised in

the motion in a prior meet and confer that took place on August 9, and which led to



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the filing of the Second Amended Complaint, which did not make substantive

revisions to the flaws discussed in the meet and confer. Thus, Defendants have

substantially complied with Rule 7-3.

Dated: September 14, 2017 MORGAN, LEWIS & BOCKIUS LLPMolly M. Lane Jason S. Mills Joseph V. Marra III Nicholas E. Frontera

By /s/ Nicholas E. Frontera

Attorneys for Defendant RASIER, LLC, RASIER-CA, LLC and UBER TECHNOLOGIES, INC.


TABLE OF CONTENTSPage

i DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS

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I. INTRODUCTION ........................................................................................... 1 II. RELEVANT FACTS AND ALLEGATIONS ................................................ 2

A. The Parties ............................................................................................. 2 B. The Technology Services Agreement ................................................... 2

1. The Terms of the Agreement ...................................................... 3 C. The Upfront Price Model ...................................................................... 5 D. Plaintiff’s Claims .................................................................................. 5

III. LEGAL STANDARD ..................................................................................... 6 IV. ARGUMENT .................................................................................................. 7

A. Plaintiff Has Failed To Allege Facts Sufficient to State A Cause of Action for Breach of Contract .......................................................... 7 1. Plaintiff Has Not Sufficiently Pled the Terms of or

Attached the Operative Contract ................................................ 7 2. Rasier LLC and Uber Technologies, Inc. Are Not Parties

to the Only Contract Plaintiff Has Alleged ................................ 7 3. Uber Did Not Breach the Terms of the Agreement .................... 8

a. Uber Is Required to Pay Drivers the Fare as Defined in the Agreement, Not the Upfront Price ........... 8

b. Plaintiff Disclaimed All Additional Amounts................ 10 4. The Dulberg Decision Should Not Be Followed ...................... 10

B. Plaintiff’s Second Cause of Action for Conversion Fails ................... 11 C. Plaintiff’s Claim for Fraud By Concealment Should Be

Dismissed ............................................................................................ 13 1. Plaintiff’s Fraud Claim Is A Mere Repackaging of His

Contract Claim .......................................................................... 14 2. Plaintiff Fails to Allege Facts That Would Confer a Duty

to Disclose On Uber.................................................................. 14 3. Plaintiff Fails to Allege the Who, What, When, Where,

How, and Why of the Alleged Fraud ........................................ 16 a. Who Concealed? ............................................................. 17 b. What Should Have Been Revealed, Where, and

When? ............................................................................. 18 D. Plaintiff’s Cause of Action For Violation of Business and

Professions Code Section 17200 (“UCL”) Fails................................. 19 E. Plaintiff’s Labor Code and PAGA Claim Should Be Dismissed

or Stayed.............................................................................................. 21 V. CONCLUSION ............................................................................................. 22


ii DEFENDANTS’ NOTICE OF MOTIONAND MOTION TO DISMISS

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TABLE OF AUTHORITIES Page(s)

Federal Cases

Aliya Medcare Fin., LLC v. Nickell156 F. Supp. 3d 1105, 1127 (C.D. Cal. 2015) ..................................................... 15

Allen v. Hyland’s, Inc.No. CV-12-1150 DMG, 2016 WL 4402794 (C.D. Cal. Aug. 16, 2016) (Gee, J.) ..................................................................... 20

Andren v. Alere, Inc.207 F. Supp. 3d 1133, 1143 (S.D. Cal. 2016) ..................................................... 15

Ashcroft v. Iqbal556 U.S. 662 (2009) .................................................................................... 6, 7, 16

Bell v. Fed. Home Loan Mortg. Corp.No. 11-CV-2514-MMA RBB, 2012 WL 1581075 (S.D. Cal. May 4, 2012) .......................................................................... 16, 18, 19

Caputo v. Prada USA Corp.No. CV 12-3244 FMO (RZX), 2014 WL 12567143 (C.D. Cal. Feb. 6, 2014) ...................................................................................... 13

Conder v. Home Sav. of Am.680 F. Supp. 2d 1168 (C.D. Cal. 2010) ................................................................. 8

Davis v. HSBC Bank Nevada, N.A.691 F.3d 1152 (9th Cir. 2012) ............................................................................. 13

DiDio v. JonesNo. CV134949PSGAGRX, 2014 WL 12591625 (C.D. Cal. May 6, 2014) ........................................................................................ 7

Duran v. Aurora Loan ServicesNo. 109CV0138OWWDLB, 2009 WL 1110645 (E.D. Cal. Apr. 24, 2009) ...................................................................................... 7

Futurewei Techs., Inc. v. Acacia Research Corp.No. SACV120511AGJPRX, 2012 WL 12905300 (C.D. Cal. Oct. 22, 2012), aff’d, 737 F.3d 704 (Fed. Cir. 2013) ........................... 2

Green v. Party City CorporationNo. CV-01-09681 CAS (EX), 2002 WL 553219 (C.D. Cal. Apr. 9, 2002) ...................................................................................... 13

Hart v. Bay view Loan Servicing, No. 216CV01309-CAS-AFMX, 2016 WL 3921139, at *7 (C.D. Cal. July 18, 2016) ........................................... 17


iii DEFENDANTS’ NOTICE OF MOTIONAND MOTION TO DISMISS

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TABLE OF AUTHORITIES(Continued)

Page(s) Heintze v. Wells Fargo Bank, N.A.

No. CV1501238MMMMANX, 2015 WL 12696455 (C.D. Cal. June 19, 2015) .................................................................................... 17

Herron v. Best Buy Co. Inc.924 F. Supp. 2d 1161 (E.D. Cal. 2013) ......................................................... 15, 16

In re Iphone 4S Consumer Litig.No. C 12-1127 CW, 2014 WL 589388 (N.D. Cal. Feb. 14, 2014), aff’d sub nom. In re iPhone 4s Consumer Litig., 637 F. App’x 414 (9th Cir. 2016) ..................................................................................................... 20

Kearns v. Ford Motor Co.567 F.3d 1120 (9th Cir. 2009) ............................................................................. 16

Lennar Mare Island, LLC v. Steadfast Ins. Co.139 F. Supp. 3d 1141, 1167 (E.D. Cal. 2015) ..................................................... 18

Marolda v. Symantec Corp.672 F. Supp. 2d 992 (N.D. Cal. 2009)................................................................. 18

Mat-Van, Inc. v. Sheldon Good & Co. Auctions, LLCNo. 07-CV-912-IEG-BLM, 2007 WL 2206946, at *5 (S.D. Cal. July 27, 2007) ..................................................................................... 17

McGehee v. Coe Newnes/McGehee ULCNo. C 03-5145 MJJ, 2004 WL 2452855 (N.D. Cal. Feb. 10, 2004) ................... 12

O’M & Assocs., LLC v. OzanneNo. 10CV2130 AJB RBB, 2011 WL 4433645 (S.D. Cal. Sept. 21, 2011) .................................................................................................................... 12

Parrino v. FHP, Inc.146 F.3d 699 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego v. The Dow Chem. Co., 443 F.3d 676 (9th Cir. 2006) ................................................................................................ 3

ScripsAmerica, Inc. v. Ironridge Glob. LLC119 F. Supp. 3d 1213, 1247 (C.D. Cal. 2015) ..................................................... 14

Shroyer v. New Cingular Wireless Services, Inc.622 F.3d 1035 (9th Cir. 2010) ............................................................................. 20

Stanford Univ. Hosp. v. Fed. Ins. Co.174 F.3d 1077 (9th Cir. 1999) ............................................................................. 10


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Page(s) Sumer v. Carrier Corp.

No. 14-CV-04271-VC, 2015 WL 3630972 (N.D. Cal. June 10, 2015) .................................................................................... 16

Swartz v. KPMG LLP476 F.3d 756 (9th Cir. 2007) (per curiam) .......................................................... 17

Tsai v. WangNo. 17-CV-00614-DMR, 2017 WL 2587929 (N.D. Cal. June 14, 2017) .................................................................................... 12

Vigdor v. Super Lucky Casino, Inc. No. 16-CV-05326-HSG, 2017 WL 2720218 (N.D. Cal. June 23, 2017) .................................................................................... 14

Villains, Inc. v. Am. Econ. Ins. Co.870 F. Supp. 2d 792 (N.D. Cal. 2012)................................................................... 8

WeBoost Media S.R.L. v. LookSmart Ltd.No. C 13-5304 SC, 2014 WL 2621465 (N.D. Cal. June 12, 2014) .................................................................................... 14

Williamson v. Gen. Dynamics Corp.208 F.3d 1144 (9th Cir. 2000) ............................................................................. 13

Yastrab v. Apple Inc. 173 F. Supp. 3d 972, 978 (N.D. Cal. 2016) ........................................................ 20

California Cases

Drum v. San Fernando Valley Bar Ass’n182 Cal. App. 4th 247 (2010) .............................................................................. 20

Ingels v. Westwood One Broad. Serv., Inc.129 Cal. App. 4th 1050 (2005) ............................................................................ 19

Korea Supply Co. v. Lockheed Martin Corp.29 Cal. 4th 1134 (2003) ....................................................................................... 19

Lewis v. YouTube, LLC244 Cal. App. 4th 118, 197 Cal. Rptr. 3d 219 (2015), rev. denied (Apr. 13, 2016) ................................................................................... 9

Mktg. W., Inc. v. Sanyo Fisher (USA) Corp.6 Cal. App. 4th 603 (1992) .................................................................................. 15


v DEFENDANTS’ NOTICE OF MOTIONAND MOTION TO DISMISS

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Page(s) Statutes

Federal Rule of Civil Procedure Rule 12(b)(6) ................................................................................................. 1, 2, 6


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ATTORNEYS AT LAW


ATTORNEYS AT LAW

MEMORANDUM OF POINTS AND AUTHORITIES

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Rasier LLC, Rasier-CA

LLC (“Rasier-CA”), and Uber Technologies, Inc. (“Uber Technologies”)

(collectively “Uber”) move to dismiss Plaintiff’s Second Amended Complaint

(“SAC”) as set forth below:

I. INTRODUCTION

Plaintiff Sophano Van (“Plaintiff”) alleges claims arising from Uber’s

implementation of an “Upfront Pricing” model, which allows riders (“Users”) to

know what they will pay for a trip before requesting a ride through the Uber App.

Plaintiff, a driver who uses the Uber App to receive transportation requests from

Users, contends that his earnings should have been tied to the pre-trip, Upfront

Price quoted to Users rather than a “base amount” plus additional amounts based on

the distance and/or time of the actual journey. But all of Plaintiff’s claims suffer

from a fundamental and incurable flaw: Plaintiff has not alleged sufficiently that

Uber breached the terms of the only agreement between them. Instead, he admits

that the Fare he is paid is based on the actual, post-trip distance and time that it

takes to complete a ride. SAC at ¶ 32. In other words, he alleges that his earnings

have been calculated consistent with his agreement with Uber, both before and after

Uber’s introduction of Upfront Pricing for Users. Even more fundamentally,

Plaintiff has not alleged the terms of that agreement he claims Uber breached.

Absent a breach of an unidentified and undescribed contract, all of Plaintiff’s

claims are subject to dismissal. There are, however, several other reasons to

dismiss Plaintiff’s claims:

• The “economic loss doctrine” bars Plaintiff’s claim for conversion because his claim is based solely on Uber’s alleged duties under the alleged contract between Plaintiff and Uber. In addition, a plaintiff cannot simultaneously pursue claims for conversion and claims for unpaid wages in violation of the Labor Code.

• As for Plaintiff’s claims for fraudulent concealment, he has not alleged sufficiently that Uber had a duty to disclose to him the allegedly concealed facts. He fails to allege that Uber had “exclusive



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knowledge” of the allegedly concealed facts, does not allege facts demonstrating that Uber “actively concealed” those facts, and has not alleged that Uber made partial representations. In addition, Plaintiff has not pled his fraudulent concealment claim with the requisite particularity.

• Plaintiff’s claim for violations of the UCL should also be dismissed because he has not alleged sufficiently that Uber engaged in an unlawful, unfair, or fraudulent practice.

• And, finally, Plaintiff’s claim for violations of the Labor Code should be dismissed for the same reasons as his claim for breach of contract.

For all of these reasons, and as discussed in greater detail below, all of

Plaintiff’s claims should be dismissed.1

II. RELEVANT FACTS AND ALLEGATIONS

A. The Parties

Plaintiff alleges that he uses Uber’s software application (the “Uber App”) to

receive User requests for rides that he provides as an independent transportation

provider (“Driver”). SAC at ¶ 5. He alleges that Uber Technologies, Rasier, and

Rasier-CA are discrete businesses (Id. at ¶¶ 7-9), yet he lazily lumps them together,

referring to them as “the Uber Defendants” throughout the Complaint. Id. at

passim.

B. The Technology Services Agreement

Although Plaintiff does not specifically allege the contract that governs his

relationship with Uber, he does allege that, in or around December 2015, the Uber

Defendants presented, and required Drivers to accept the terms of, Uber’s

Technology Services Agreement. Id. at ¶¶ 24−25.

1 Additionally, Defendants move to dismiss Plaintiff’s claims based on the grounds set forth in their concurrently-filed motion to stay. Due to multiple pending actions in federal and state court involving similar issues, the Court should dismiss Plaintiff’s claims under the first-to-file rule. See Futurewei Techs., Inc. v. Acacia Research Corp., No. SACV120511AGJPRX, 2012 WL 12905300, at *5 (C.D. Cal. Oct. 22, 2012), aff'd, 737 F.3d 704 (Fed. Cir. 2013) (dismissing claims based on the first-to-file rule). Uber respectfully requests that this Court first decide whether to dismiss or stay this case under the “first-to-file” or “Colorado River” doctrines. If the Court is not inclined to grant that separate motion, Uber requests that this Court then consider the instant 12(b)(6) motion.



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Any ridesharing Driver like Plaintiff who wishes to access the uberX product

to connect with Users must first enter into the Rasier Technology Services

Agreement December 11, 2015 (the “Agreement”), with Rasier-CA, LLC if the

Driver’s territory is in the state of California. See Declaration of Nicholas Frontera

(“Frontera Decl.”), Exh. 1, at 1.2 Plaintiff does not allege that he accepted the terms

of the Agreement, when he began driving with Uber, or whether he continues to

drive with Uber. For the purposes of this Motion, however, Uber will assume that

Plaintiff’s references to the contract that he alleges Uber breached are in reference

to the Agreement.3

1. The Terms of the Agreement

Paragraph 4.1 of the Agreement sets forth the payments that Drivers receive

for providing rides requested by Users via the Uber Application. Specifically,

drivers are entitled to charge a “Fare” for “each instance of completed

Transportation services.” Frontera Decl., Exh. 1 at ¶ 4.1. The “Fare Calculation” is

calculated by adding a base amount, plus “distance (as determined by Company

using location-based services enabled through the Device) and/or time amounts, as

2 Plaintiff relies on “representations” made in the Agreement and appears to base his breach of contract claim on the document. As a result, the Court may take judicial notice of it. Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998), superseded by statute on other grounds as recognized in Abrego v. The Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006) (“[A] district court on a motion to dismiss[, however,] may consider a document the authenticity of which is not contested, and upon which the plaintiff's complaint necessarily relies.”); Aliya Medcare Fin., LLC v. Nickell, No. CV 14-07806 MMM (Ex), 2015 WL 4163088, at *10 (C.D. Cal. July 9, 2015) (considering agreements proffered by the defendant because they were essential to plaintiff’s claims and authenticity of the agreements was not disputed). 3 The Agreement was updated via an addendum on May 22, 2017 (the “Addendum”). Frontera Decl., Exh. 3, “May 22, 2017 Addendum to the Agreement.” While the Agreement already made clear that the Fare to which Drivers are entitled is based on the base fare plus time and/or distance, the Addendum underscores this point. As discussed below, Plaintiff has not alleged specifically the contract that he relies on for purposes of his Complaint. Because the Addendum was implemented after the filing of Plaintiff’s initial complaint, however, Uber assumes for purposes of this motion that the contract alleged in his SAC is the December 11, 2015 Agreement, and all references to the Agreement will refer to pre-Addendum provisions therein.



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detailed at www.uber.com/cities.” Id. The Driver then pays Uber a service fee,

which is a percentage of the Fare earned by the Driver. Id. at ¶ 4.4. The

Agreement emphasizes that “the Fare provided under the Fare Calculation (less the

applicable service fee) is the only payment you [i.e., the driver] will receive in

connection with the Transportation Services.” Id. at ¶ 4.1.

The Agreement allows Uber to adjust the Fare under various circumstances.

For example, Uber is permitted to make changes to the Fare Calculation based on

local market factors. See id. at ¶ 4.2. Likewise, Uber may adjust the Fare based on

other factors such as inefficient routes, technical errors, or customer complaints.

See id. at ¶ 4.3.

Drivers disclaim any right to receive amounts over and above the Fare

produced by the Fare Calculation. See id. at ¶¶ 4.1, 4.7. Plaintiff merely appoints

Uber as a limited payment collection agent for certain specified amounts: the Fare,

tolls, and other taxes and fees. See id. at ¶ 4.1. Uber does not collect or remit to

Plaintiff additional amounts related to promotional activity. Id. at ¶ 4.7. In a

paragraph entitled “No Additional Amounts,” Drivers specifically acknowledge

that Uber may engage in advertising and marketing “for the mutual benefit of the

parties” seeking “to attract new Users to Uber and to increase existing Riders’ use

of Uber’s mobile application,” and that Uber’s efforts in that regard will not entitle

the Driver “to any additional monetary amounts beyond the amounts expressly set

forth in this Agreement.” Id. at ¶ 4.7. 4

4 The Agreement also includes an arbitration provision that requires all Drivers who do not opt out of the provision to arbitrate on an individual basis all claims “arising out of or relating to interpretation of application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision.” Plaintiff has not alleged whether he accepted or opted out of the agreement or whether he is asserting claims on behalf of class members who are subject to the arbitration provision.



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C. The Upfront Price Model

Plaintiff alleges that, sometime between June and September 2016, Uber

implemented an “Upfront Pricing” model, which calculates a User’s total payment

for a requested ride before a driver provides transportation services. SAC at ¶ 26.

Plaintiff further alleges that, after Upfront Pricing began, Drivers continued to earn

based on the trip’s distance and the amount of time it actually took to complete the

trip. Plaintiff claims the Upfront Price is often higher than the Fare, which is the

basis of what is remitted to him. He neglects to mention, however, the significant

risk placed on Uber, not Drivers, by Upfront Pricing: the User’s Upfront Price may

just as easily disadvantage Uber, for example, where an actual trip takes longer

than expected, yet the Driver’s earnings calculation remains constant. Id. at ¶¶ 29-

31. In other words, under Plaintiff’s theory of the case, Drivers should give up the

certainty of the Fare calculation and shoulder the risk of providing Users with pre-

trip prices that ultimately might be lower than the Fare.

D. Plaintiff’s Claims

Roughly seven months after Plaintiff alleges Uber implemented Upfront

Pricing, Plaintiff filed this suit alleging claims for breach of contract, conversion,

fraudulent concealment, violations of the Unfair Competition Law, and violations

of the California Labor Code. Plaintiff contends that after Upfront Pricing was

instituted, he should have been paid based on the Upfront Price rather than the

“Fare.” SAC at ¶¶ 31, 52-54. Plaintiff’s central claim is based on a breach of the

alleged contract,5 but the all of his claims are premised on contractual duties, rights

or representations. Plaintiff’s conversion cause of action depends on rights arising

from the contract. Id. at ¶¶ at 59-60 (“Plaintiff . . . [was] the rightful owner of those

funds retained by Defendants in excess of the agreed upon percentage of the fare .

5 Id. at ¶ 54 (“[a]s a result of the misrepresentations and omissions alleged herein including the Defendants’ failure to remit payment to Plaintiff… of the full amount of the fare . . . there has been a violation of the agreement.”)



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. . Defendants have wrongfully retained a portion of the fare in excess of the

contractual service fee and booking fee” (emphasis added)). Plaintiff’s fraudulent

concealment and UCL claims too stem from the alleged representations included in

the contract. See id. at ¶¶ 65, 73-74, 76 and 81 (fraudulent concealment) (referring

to “representations” made by Uber that appear to be paraphrased provisions of the

Agreement); id. at ¶ 91 (claiming UCL violations permitted Defendants “to

improperly syphon [sic] off a portion of the fare in excess of their permitted fees”

(emphasis added)).

Plaintiff’s Labor Code claim and PAGA allegations are also premised on

Uber’s alleged breach of contract. Plaintiff alleges that “the full fare charged to

Users, minus the contractual fees . . . constitutes the wages to which Plaintiff [is]

entitled.” Id. at ¶ 102 (emphasis added). Plaintiff also alleges in conclusory fashion

that the Upfront Pricing algorithm uses a longer route to calculate a User’s payment

than the route provided by navigational software Uber makes available to Drivers.

Id. at ¶ 82. Additionally, Plaintiff claims that he was misclassified as an

independent contractor, is actually Uber’s employee, and Uber failed to pay him

wages. Id. at ¶ 99.

For the reasons discussed below, to the extent that Plaintiff’s claims are not

dismissed or stayed based on Uber’s concurrently-filed motion to dismiss under the

first-to-file rule and the Colorado River abstention doctrine, they should be

dismissed.

III. LEGAL STANDARD

To survive a Rule 12(b)(6) motion to dismiss, a complaint must “contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 547 (2007)). “[L]egal conclusion[s] couched as …

factual allegation[s]” and “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements” need not be presumed true for purposes



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of a motion to dismiss. Iqbal, 556 U.S. at 678 (internal quotations omitted). “A

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the

elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders

‘naked assertions’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly,

550 U.S. at 555, 557) (internal brackets and citations omitted). Plaintiff’s claims

fall well short of the Iqbal/Twombly requirements.

IV. ARGUMENT A. Plaintiff Has Failed To Allege Facts Sufficient to State A Cause of

Action for Breach of Contract.

In his first cause of action for breach of contract, Plaintiff alleges that

because of “the Uber Defendants’ failure to remit payment to Plaintiff … the full

amount of the fare, there has been a … breach of the Agreement between Plaintiff

and the Uber Defendants.” SAC at ¶ 54. For the reasons discussed below,

Plaintiff’s breach of contract claim should be dismissed.

1. Plaintiff Has Not Sufficiently Pled the Terms of or Attached the Operative Contract.

Plaintiff’s first cause of action for breach of contract should be dismissed

because he has not attached the operative contract, identified the parties to it, or

described how the specific provisions were breached. See Duran v. Aurora Loan

Services, No. 109CV0138OWWDLB, 2009 WL 1110645, at *3 (E.D. Cal. Apr. 24,

2009) (citing Perry v. Robertson, 201 Cal. App. 3d 333, 341 (1988)). Failure to

plead adequately or attach the contract requires dismissal. DiDio v. Jones, No.

CV134949PSGAGRX, 2014 WL 12591625, at *2 (C.D. Cal. May 6, 2014)

(dismissing claim where Plaintiff did not “not make it clear which agreement [was]

the foundation for Plaintiffs' breach of contract claim”).

2. Rasier LLC and Uber Technologies, Inc. Are Not Parties to the Only Contract Plaintiff Has Alleged.

Plaintiff’s breach of contract claim against Rasier LLC and Uber



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Technologies must also be dismissed because there is no privity of contract

between them and Plaintiff.6 The parties to the only contract that Plaintiff has

identified in the SAC – the Agreement – are Rasier-CA and the California Drivers

that assented to its terms. Rasier LLC and Uber Technologies are not parties.

Frontera Decl., Exh. 1, p. 1. Plaintiff’s breach of contract claim against them must

be dismissed as a result.7 See Conder v. Home Sav. of Am., 680 F. Supp. 2d 1168,

1174 (C.D. Cal. 2010) (dismissing breach of contract claims because defendant was

not a party to the allegedly breached contract).

3. Uber Did Not Breach the Terms of the Agreement.

If Plaintiff intended to assert that Uber breached Section 4 of the Agreement,

he has no claim. Plaintiff’s allegations are premised on the notion that once Uber

implemented Upfront Pricing for riders, it was required under the terms of the

Agreement to change how the Fare was calculated for Drivers. This conclusion

rests on a misinterpretation of the Agreement.

a. Uber Is Required to Pay Drivers the Fare as Defined

in the Agreement, Not the Upfront Price.

Under the Agreement, Plaintiff is entitled to the “Fare,” which is calculated

based on how far and for how long Plaintiff actually drove to complete the

Transportation Services, not the amount shown to Users at the beginning of the

ride. Section 4 of the Agreement entitled “Financial Terms,” governs how Drivers

are paid. Frontera Decl., Exh. 1 at ¶ 4.1. Section 4.1, entitled “Fare Calculation and

6 Rasier LLC is a party to the Agreement only if the driver is a resident of a state other than California, Pennsylvania, Montana, Florida, and New Mexico. Frontera Decl., Ex. 1, p. 1. Because Plaintiff is a resident of the state of California and has alleged his claims on behalf of a putative class of California drivers, Rasier LLC is not implicated here. 7 Because Plaintiff’s other claims are all derivative of his breach of contract claim, all other claims against Rasier LLC and Uber Technologies, Inc. must be dismissed as well. See Villains, Inc. v. Am. Econ. Ins. Co., 870 F. Supp. 2d 792, 798 (N.D. Cal. 2012) (dismissing contract and implied covenant claims against insurance companies that were not parties to the insurance policy at issue).



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Your Payment,” states “[y]ou are entitled to charge a fare for each instance of

completed Transportation Services provided to a User that are obtained via Uber

Services (“Fare”).” Id. at ¶ 4.1 (emphasis added). The subsequent clause states

“Fare is calculated based upon a base fare amount plus distance (as determined by

Company using location-based services enabled through the Device) and/or time

amounts, as detailed at www.uber.com/cities for the applicable Territory (‘Fare

Calculation’).” Id. at ¶ 4.1. Further down, Section 4.1 reads “the Company agrees

to remit … to you on at least a weekly basis (a) the Fare less the applicable Service

Fee; (b) the Tolls; and (c) depending on the region, certain taxes and ancillary

fees.” Id. at ¶ 4.1. Plaintiff asserts that he is entitled to the “full fare” under the

Agreement and that the “full fare” that the Driver earns must be based on the

amount that the User pays. See SAC at ¶¶ 31, 34-35, 52-53. This interpretation

requires a reader to ignore the clear language of the contract.

First and most importantly, nothing in Section 4 (nor anywhere else in the

Agreement) requires that Plaintiff be paid the “Upfront Price,” “estimated price,”

“full fare,” “whatever users are charged,” or suggests that a Driver’s earnings are

otherwise tied to those amounts. Plaintiff’s allegations that Uber breached the

Agreement by not paying “the full amount of the fare” does not sufficiently allege

that Plaintiff failed to receive the Fare as defined in the Section 4 of the

Agreement. As a result, his claim must fail. See Lewis v. YouTube, LLC, 244 Cal.

App. 4th 118, 127, 197 Cal. Rptr. 3d 219, 226 (2015), rev. denied (Apr. 13, 2016)

(denying breach of contract claim seeking specific performance where there was no

specific provision in the Terms of Service that could serve as the basis for relief).

Second, Drivers are only entitled to a fare for “completed Transportation

Services.” The use of the term “completed” indicates that the Fare is based on an

amount determined after the trip is over, as opposed to the Upfront Price, which is

determined before the trip is taken.

Third, Section 4.3 of the Agreement states that the Fare may be adjusted



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based on things that happen during the trip such as route inefficiencies or customer

complaints, which indicates that the Fare is based on how far the Driver went and

what happened on the ride, not the set Upfront Price.

b. Plaintiff Disclaimed All Additional Amounts.

The Fare is all that Plaintiff is entitled to under the Agreement because he

expressly disclaimed any right to any “additional monetary amounts” generated by

Uber’s own advertising or marketing activities, such as the adoption of the Upfront

Pricing model. Frontera Decl., Exh. 1. at ¶ 4.7. In addition, Plaintiff agreed that

Uber is a limited payment collection agent only for purposes of collecting the Fare

and tolls and that the amounts paid to him are based solely on the Fare Calculation.

Id. at ¶¶ 4.1, 4.7. These acknowledgements foreclose any claim that Uber is

contractually obligated to pay Drivers an amount greater than the Fare, including

any additional amounts generated as a result of a difference between the Upfront

Price and the Fare. See, e.g., Stanford Univ. Hosp. v. Fed. Ins. Co., 174 F.3d 1077,

1086-87 (9th Cir. 1999) (insurance policy specifically excluded coverage for

certain losses, therefore plaintiff was precluded from recovering such losses under

the policy).

4. The Dulberg Decision Should Not Be Followed.

Over one month ago, Judge Alsup of the Northern District of California held

that a plaintiff’s allegations in a putative class action similar to this one were

sufficient to survive dismissal. There, the plaintiff asserted a single breach of

contract claim, alleging that the amount he is being paid is not the Fare required

under the Agreement. See Frontera Decl., Ex. 3, Dulberg v. Uber Tech., Inc. et al.,

No. C 17-00850 WHA (Order denying Motion to Dismiss). Dulberg is not binding

on this Court, which should nevertheless decline to follow that case for the

following reasons.

First, the Dulberg court did not analyze several important provisions of the

Agreement. The Dulberg court stated that there was no provision in the driver



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Agreement that indicates the Fare is calculated based on actual amounts determined

after each “completed trip.” See id. at *7. This is incorrect. The first line of Section

4 of the Agreement prominently states that drivers are compensated based on the

completed Transportation Services, not the estimated Transportation Services

provided to a User prior to a trip. Frontera Decl., Exh. 1 at ¶ 4.1. Further, the “Fare

Adjustment” provision indicates that the Fare may be impacted by things that

happen during the route; this could not be the case if the Fare was locked in at the

estimated price as the Upfront Price is. Id. at ¶ 4.2. These provisions strongly

support Uber’s interpretation that regardless of how the Upfront Price is calculated,

Driver payments are based on the journey actually taken.

Second, the court in Dulberg did not address the Agreement’s provision in

which Drivers disclaim any right to additional amounts relating to Uber’s

advertising and marketing efforts and whether the alleged discrepancy between the

Fare and the Upfront Pricing model resulted from such efforts. Id. at ¶ 4.7.8

The Dulberg court failed to analyze several key provisions in the Agreement

in denying Uber’s motion to dismiss. The Court in this case should reach a

different conclusion and dismiss Plaintiff’s breach of contract claim for the reasons

discussed above.

B. Plaintiff’s Second Cause of Action for Conversion Fails.

Plaintiff’s second claim for conversion is nothing more than a retread of his

contract claim. Plaintiff again alleges that Uber failed to pay him in accordance

with his flawed interpretation of the Agreement. Such allegations cannot serve as

the basis for a conversion claim for at least three reasons.

First, Plaintiff’s conversion claim fails because it is based solely on duties

allegedly arising out of the Agreement. Plaintiff alleges that he and the putative

8 Alternatively, if the Court is inclined to follow the Dulberg court’s reasoning and find that Plaintiff has sufficiently pled his cause of action for breach of contract, all of Plaintiff’s claims should be stayed under the first-to-file rule as more fully set forth in Defendants’ motion to stay filed concurrently herewith.



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class members were the owners of “funds retained by Defendants in excess of the

agreed upon percentage of the fare and were entitled to possession of such property

at the time of the Defendants’ conduct herein.” SAC at ¶ 59. Similarly, in his

claim for breach of contract, Plaintiff claims that Uber and Plaintiff “had a

contractual Agreement” and that as a result of “the Uber Defendants’ failure to

remit payment to the Plaintiff … of the full amount of the fare … there has been a

violation or breach of the Agreement.” Id. at ¶ ¶ 52, 54. Under California law,

“the economic loss rule bars recovery in tort for economic damages arising out of

matters governed by contract.” O'M & Assocs., LLC v. Ozanne, No. 10CV2130

AJB RBB, 2011 WL 4433645, at *3 (S.D. Cal. Sept. 21, 2011) (citations omitted).

Applying this rule, courts routinely dismiss conversion claims that are “based solely

on Defendant’s alleged duties under the contract.”9 Accordingly, Plaintiff has

failed to plead an independent tort of conversion as Plaintiff’s alleged right to

possess the disputed funds derives only from the Agreement.

Second, even if Plaintiff could maintain his conversion claim alongside his

contract claim, it fails for the same reasons as the contract claim fails. As discussed

above, Plaintiff has no right to possess the disputed amounts in excess of the Fare,

and, in fact, he disclaimed the right to receive anything received as the result of

Uber’s advertising and marketing. Frontera Decl., Exh. 1 at ¶ 4.7.

Third, Plaintiff alleges that he and the other putative class members are

“employees” of Uber and that “the full fare charged to Riders, minus the

contractual fees payable to the Uber Defendants, constitutes the wages to which

Plaintiff and Class Members are entitled under their employment with the Uber 9 See Tsai v. Wang, No. 17-CV-00614-DMR, 2017 WL 2587929, at *9 (N.D. Cal. June 14, 2017) (dismissing conversion claim where it was “based solely on Defendant's alleged duties under the contract, and the amount of damages he seeks is identical to the … money to be returned under the parties' agreement;”); see alsoMcGehee v. Coe Newnes/McGehee ULC, No. C 03-5145 MJJ, 2004 WL 2452855, at *3 (N.D. Cal. Feb. 10, 2004) (“because Defendant's right to possess Plaintiffs’ patents derived only from contract, . . . the duty Plaintiffs owed Defendant was only a contractual one . . . Defendant has not pled an independent tort.”).



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Defendants.” SAC at ¶¶ 99, 102. Accordingly, Plaintiff alleges that Uber has

violated the Labor Code by failing to pay Plaintiff such “wages.” Id. at ¶ 103.

Though Uber disputes this characterization, this District has routinely held that a

plaintiff may not simultaneously maintain a common law cause of action for

conversion and a statutory cause of action for unpaid wages in violation of the

Labor Code, as the Labor Code provides the exclusive remedial scheme for

violations of its provisions. See Caputo v. Prada USA Corp., No. CV 12-3244

FMO (RZX), 2014 WL 12567143, at *7 (C.D. Cal. Feb. 6, 2014) (collecting cases

holding that “a claim for conversion based on recovering unpaid wages is barred by

the exclusive remedy provided by the California Labor Code”); Green v. Party City

Corporation, No. CV-01-09681 CAS (EX), 2002 WL 553219, at *5 (C.D. Cal.

Apr. 9, 2002) (holding the “statutory remedies for unpaid overtime wages bar[red]

[the] plaintiff’s claim for conversion”). The opposite conclusion “would in effect

transform every claim for damages and statutory penalties into a conversion claim,

thereby providing punitive damages for every breach of a statute that implements a

penalty for its breach.” Caputo, 2014 WL 12567143, at *8 (citation omitted). The

Court should dismiss Plaintiff’s conversion claim.

C. Plaintiff’s Claim for Fraud By Concealment Should Be Dismissed.

Plaintiff’s “fraud by concealment” claim is also insufficiently pled. To state a

claim for “fraud by concealment,” Plaintiff must allege that Uber had a duty to

disclose a material fact, concealed the fact with an intent to defraud, and caused

damage to Plaintiff who would have acted differently had he known of the fact.

Davis v. HSBC Bank Nevada, N.A., 691 F.3d 1152, 1163 (9th Cir. 2012);

Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1156 n. 3 (9th Cir. 2000).

Plaintiff’s concealment claim should be dismissed because it mirrors his contract

claim, it fails to allege sufficiently that Uber had a duty to disclose, and Plaintiff has

not pled it with the required particularity.



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1. Plaintiff’s Fraud Claim Is A Mere Repackaging of His Contract Claim.

Plaintiff’s fraudulent concealment claim should be rejected outright because,

as with his conversion claim, it is a repackaging of his contract claim. “A mere

nonperformance of a contractual promise … alone is not sufficient” to plead fraud.

ScripsAmerica, Inc. v. Ironridge Glob. LLC, 119 F. Supp. 3d 1213, 1247 (C.D. Cal.

2015). Courts have consistently dismissed fraudulent concealment claims where

the alleged misconduct amounted to nothing more than a failure to perform a

contract. See, e.g., Vigdor v. Super Lucky Casino, Inc., No. 16-CV-05326-HSG,

2017 WL 2720218, at *6 (N.D. Cal. June 23, 2017); see also WeBoost Media S.R.L.

v. LookSmart Ltd., No. C 13-5304 SC, 2014 WL 2621465, at *6 (N.D. Cal. June 12,

2014) (rejecting fraudulent concealment claim that mirrored the breach of contract

claim and merely added allegations of fraudulent intent).

Here, Plaintiff’s fraudulent concealment claim sounds solely in contract.

Compare SAC at ¶¶ 53-54 (contract claim) (“The Uber Defendants agreed that they

would collect and pay to the Plaintiff the fare” minus fees and that as a result of the

misrepresentations and omissions there has been a violation of the agreement) with

SAC at ¶ 73 (fraud claim) (“Plaintiff ... ha[s] not received the total fares collected

from Users, minus the Uber Defendants’ service and booking fees.”). Plaintiff’s

central contention on which both claims are based is that he was harmed because

Uber denied him sums to which he believed he was entitled under the Agreement,

not because Uber made fraudulent misrepresentations or concealments. Because

Plaintiff’s fraud claim is duplicative of his contract claim, it should be dismissed.

2. Plaintiff Fails to Allege Facts That Would Confer a Duty to Disclose On Uber.

Plaintiff’s fraudulent concealment claim also fails because Plaintiff has not

alleged facts that would impose a duty of disclosure on Uber. A duty to disclose

arises when the defendant (1) is in a fiduciary relationship with the plaintiff; (2) has



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exclusive knowledge of material facts not known to the plaintiff; (3) actively

conceals a material fact from the plaintiff; or (4) makes partial representations but

also suppresses some material facts. Mktg. W., Inc. v. Sanyo Fisher (USA) Corp., 6

Cal. App. 4th 603, 613 (1992) (citation omitted). Plaintiff alleges no fiduciary

relationship with Uber so a duty could only have arisen from either exclusive

knowledge, active concealment, or a partial representation. None are sufficiently

alleged here.

Uber did not have “exclusive knowledge” because the alleged discrepancy

between rider payments (i.e., the Upfront Price) and Driver Fares was easily

discoverable. To allege “exclusive knowledge,” the plaintiff must allege specific

allegations that the defendant “had exclusive knowledge of the omitted material

facts and that Plaintiff could not have reasonably discovered such facts.” Herron v.

Best Buy Co. Inc., 924 F. Supp. 2d 1161, 1175 (E.D. Cal. 2013) (citation omitted);

see also Andren v. Alere, Inc., 207 F. Supp. 3d 1133, 1143 (S.D. Cal. 2016)

(granting motion to dismiss and finding that there was no duty to disclose because

the allegedly exclusively known facts were publicly-available). Facts that could

have been discovered through simple due diligence are not, by definition, “difficult

to discover.” See id.; see also Aliya Medcare Fin., LLC v. Nickell, 156 F. Supp. 3d

1105, 1127 (C.D. Cal. 2015) (applying Nevada law).

Uber’s implementation of Upfront Pricing was hardly a secret. Plaintiff

admits that Users were told what they would be charged before they got inside the

vehicle. See SAC ¶¶ 26, 29. Further, Drivers also knew that they were not paid

until the end of the ride and could have simply asked a User how much he or she

paid for the trip to learn of any discrepancy. The fact that Users knew of the

Upfront Price and the fact that Plaintiff could have easily discovered the alleged

discrepancy shows there was no “exclusive knowledge.”

Further, Plaintiff fails to point to discrete affirmative acts by Uber to

“actively conceal” specific information from Plaintiff. To plead “active



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concealment,” a plaintiff must allege specific “affirmative acts on the part of the

defendants in hiding, concealing or covering up the matters complained of.”

Herron, 924 F. Supp. 2d at 1176 (citations omitted) (mere nondisclosure is

insufficient). Plaintiff makes conclusory allegations that (1) Uber “active[ly],

knowing[ly], and affirmative[ly] conceal[ed] the fact the upfront pricing utilizes a

longer route than the one provided to drivers” and (2) that there “was a fare

discrepancy as a result of the different routes utilized.” SAC at ¶ 82. But, Plaintiff

fails to specify exactly how any specific defendant or employee actively concealed

these facts. Plaintiff’s conclusory allegations are insufficient to establish a duty to

disclose under an active concealment theory. Iqbal, 556 U.S. at 678.

Plaintiff’s allegations concerning a “partial representation” are also devoid of

particularity and couched in generalities. A “partial representation” theory

supporting a duty to disclose requires more than conclusory allegations. Sumer v.

Carrier Corp., No. 14-CV-04271-VC, 2015 WL 3630972, at *2 (N.D. Cal. June 10,

2015) (“partial representation” theory failed because the SAC contained nothing

beyond conclusory allegations). Plaintiff must allege when specific representations

were made, by whom, when they were relied upon, and how. Here, Plaintiff merely

alleges that “the Uber Defendants made general affirmative representations about

that [sic] the full fare charged under their pricing model belonged to the drivers,

[less fees].” SAC at ¶ 81(emphasis added). Plaintiff does not point to any specific

representations, who made them, when they were made, or what made them

incomplete. Plaintiff’s partial representation theory cannot support a duty to

disclose.

3. Plaintiff Fails to Allege the Who, What, When, Where, How, and Why of the Alleged Fraud.

Fraudulent concealment “must be pleaded with particularity under Rule 9(b)”

and be accompanied by the “who, what, when, where, and how: of the misconduct

charged.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009); Bell v.



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Fed. Home Loan Mortg. Corp., No. 11-CV-2514-MMA RBB, 2012 WL 1581075,

at *5 (S.D. Cal. May 4, 2012) (fraudulent concealment claims require the same

level of specificity). These circumstances include the “time, place, and specific

content of the false representations as well as the identities of the parties to the

misrepresentations” or omissions. See Swartz v. KPMG LLP, 476 F.3d 756, 764

(9th Cir. 2007) (per curiam) (quoting Edwards v. Marin Park, Inc., 356 F.3d 1058,

1066 (9th Cir. 2004)). Here, while Plaintiff’s fraud claim is styled as a claim for

“concealment,” Plaintiff also alleges that Defendants made misrepresentations.

SAC at ¶¶ 64 and 74. Plaintiff has failed to allege either claim with the required

specificity.

a. Who Concealed?

Plaintiff fails to identify exactly who engaged in the alleged “concealment,”

who made the misrepresentation, or who failed to disclose. Rather than identify the

specific individual or even company that was involved in the alleged concealment

Plaintiff generally claims “the Uber Defendants concealed material facts

concerning the amounts charged to Riders as the full fare for the transportation

services provided.” SAC at ¶ 64. Similarly, Plaintiff vaguely alleges “Plaintiff

performed services based on the [Defendant’s] representations” and “the Uber

Defendants’ misrepresentations were material to Plaintiff.” SAC at ¶¶ 73-74.

This is insufficient under Rule 9b. Mat-Van, Inc. v. Sheldon Good & Co. Auctions,

LLC, No. 07-CV-912-IEG-BLM, 2007 WL 2206946, at *5 (S.D. Cal. July 27,

2007) (“the complaint lumps the two defendants together without alleging the role

or participation of each defendant in the fraud as required under the heightened

pleading requirements for fraud”).10 Without specifying the identity of the alleged

10 See also, Hart v. Bay view Loan Servicing, No. 216CV01309CASAFMX, 2016 WL 3921139, at *7 (C.D. Cal. July 18, 2016) (finding that plaintiffs –“who repeatedly refer to all ‘defendants’ without specifying any particular defendant”––failed to sufficiently allege fraudulent concealment claim); see also Heintze v. Wells Fargo Bank, N.A., No. CV1501238MMMMANX, 2015 WL 12696455, at *8 (C.D. Cal. June 19, 2015) (“Plaintiff “fail[ed] adequately to plead the ‘who’ of the alleged



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concealer, misrepresenter or nondiscloser, Plaintiff has not plausibly pled a

fraudulent concealment claim.

b. What Should Have Been Revealed, Where, and When?

Plaintiff also fails to allege the specific dates, times, or places in which Uber

had the opportunity to disclose the allegedly concealed information. To withstand a

motion to dismiss, a plaintiff “must describe the content of the omission and where

the omitted information should or could have been revealed, as well as provide

representative samples of advertisements, offers, or other representations that

plaintiff relied on [] and that failed to include the allegedly omitted information.”

Marolda v. Symantec Corp., 672 F. Supp. 2d 992, 1002 (N.D. Cal. 2009); Bell,

2012 WL 1581075, at *5 (finding that a plaintiff must allege the “places, dates, or

times of their interactions” where the defendant allegedly chose to withhold

material information). Courts have dismissed claims where plaintiffs have failed to

specify the allegedly failed revelatory moments. See, e.g., Lennar Mare Island,

LLC v. Steadfast Ins. Co., 139 F. Supp. 3d 1141, 1167 (E.D. Cal. 2015) (dismissing

fraudulent concealment claim where the claimed omissions lacked detail, did not

specify the subject matter involved, and did not explain why the omissions were

related to the dispute, or why they were material).

Plaintiff’s allegations similarly fall short here. Plaintiff generally avers that

“[a]t all relevant times ... the Uber Defendants represented to both Riders and

drivers that the amount identified in the upfront pricing was the substantive

equivalent of the ‘fare’ and that the amount was determined based upon a base fare

plus a per-mile and per-minute charge for the estimated time of travel,

respectively.” SAC at ¶ 65; see also id. at ¶ 81 (Uber “made general affirmative

representations about the full fare charge”). These allegations are insufficient in

fraud” where Plaintiff did not identify any employee or job title of the person who made the purported misrepresentations).



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that they do not provide the exact time, or even the precise date, that Defendants

made the alleged representations to Plaintiff; they do not state when, where and

how Uber could have revealed the allegedly omitted facts; and they also do not

state facts as to how these vague representations were communicated to Plaintiff.

See Bell, 2012 WL 1581075, at *5. Plaintiff has failed to meet his burden in

pleading with specificity that Uber fraudulently concealed any material facts from

Plaintiff, and the Court should dismiss this cause of action.

D. Plaintiff’s Cause of Action For Violation of Business and Professions Code Section 17200 (“UCL”) Fails.

Plaintiff alleges that Uber has committed unlawful, unfair, and fraudulent

business practices in violation of the UCL “by intentionally manipulating the fares

charged to Users and the amount reported to drivers as the total fare to artificially

create a material discrepancy between the two numbers and to permit the Uber

Defendants to improperly syphon [sic] off a portion of the fare in excess of their

permitted fees, for their own benefit.” SAC at ¶ 91. This hyperbolic rendition of

the alleged facts amounts to little more than an attempt to repackage Plaintiff’s

breach of contract, conversion and fraudulent concealment claims as one for unfair

competition. As noted above, Plaintiff has utterly failed to state a claim for relief

under any of these theories. An action under the UCL “is not an all-purpose

substitute for a tort or contract action.” Korea Supply Co. v. Lockheed Martin

Corp., 29 Cal. 4th 1134, 1150–51 (2003) (citation omitted). Plaintiff cannot rely on

his UCL as a substitute because he has no basis to recover under his contract and

tort claims.

Furthermore, Plaintiff has failed to allege a claim under any of the three UCL

prongs. As for the “unlawful” prong, Plaintiff does not allege which laws Uber

purportedly violated. See Ingels v. Westwood One Broad. Serv., Inc., 129 Cal. App.

4th 1050, 1060 (2005) (holding that if the complaint fails to state a violation of an

underlying law, the claim on which it is premised must fail). To the extent that



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Plaintiff’s “unlawful” UCL claim is predicated on Plaintiff’s common law breach of

contract, conversion, and fraud by concealment causes of action, it fails as a matter

of law because common law violations cannot form the basis for a claim under the

UCL’s “unlawful” prong. see Shroyer v. New Cingular Wireless Services, Inc., 622

F.3d 1035, 1044 (9th Cir. 2010) (breach of contract claim insufficient to establish a

violation of the unlawful prong under the UCL).

As to the “unfair prong,” while the test for determining whether a business

practice is unfair is not settled, applying any of the tests that various courts have

applied, Plaintiff’s allegations come up short. Plaintiff has failed to allege that

Uber violated any public policy that is “tethered to any specific Constitutional,

statutory, or regulatory provisions.”11 Plaintiff’s complaint includes no facts that

establish that Uber’s implementation of Upfront Pricing was “immoral, unethical,

oppressive, unscrupulous or substantially injurious to consumers.”12 To the

contrary, Upfront Pricing promotes transparency with Users and ideally increases

use of the Uber application, a benefit to drivers. Further, Plaintiff has not alleged

that he has suffered a “substantial” injury13 nor has he alleged that any such injury

was outweighed by benefits that consumers received through the implementation of

Upfront Pricing.

Lastly, like his fraudulent concealment allegations, Plaintiff has failed to

allege a violation of the UCL based on the “fraudulent” prong with the particularity

required under Rule 9(b). See Yastrab v. Apple Inc., 173 F. Supp. 3d 972, 978 (N.D.

Cal. 2016) (dismissing UCL fraud claim based on unidentified representations and

because the complaint failed to explain why such representations were false); In re

11 See Allen v. Hyland's, Inc., No. CV-12-1150 DMG (MANx), 2016 WL 4402794, at *3 (C.D. Cal. Aug. 16, 2016) (Gee, J.) (citing Drum v. San Fernando Valley Bar Ass'n, 182 Cal. App. 4th 247, 256 (2010)) (discussing the “tethered” test). 12 See id. Drum, 182 Cal. App. 4th at 257 (discussing the “immoral, unethical or substantially injurious” test). 13 See id. (discussing the “substantial injury, not outweighed by the benefit” test).



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Iphone 4S Consumer Litig., No. C 12-1127 CW, 2014 WL 589388, at *5 (N.D. Cal.

Feb. 14, 2014), aff'd sub nom. In re iPhone 4s Consumer Litig., 637 F. App'x 414

(9th Cir. 2016) (dismissing fraud-based UCL claims for lack of specificity).

Plaintiff’s UCL claim should be dismissed.

E. Plaintiff’s Labor Code and PAGA Claim Should Be Dismissed or Stayed.

As discussed more fully in Uber’s concurrently filed motion to stay,

Plaintiff’s Labor Code and PAGA claim is duplicative of claims asserted in several

other pending federal and state cases in which plaintiffs have alleged that Drivers

have been misclassified as independent contractors rather than employees. For this

reason alone, Plaintiff’s Labor Code and PAGA claims should be dismissed, or at

minimum, stayed. But the Court should also dismiss Plaintiff’s Labor Code claim

and PAGA allegations because they are premised on the same shaky foundation as

his contract claim.

Specifically, Plaintiff alleges that the “full fare charged to Users minus the

contractual fees” are wages to which he is entitled and that Uber failed to pay him

these wages. See SAC at ¶¶ 102-03. Because Plaintiff is not entitled to the “full fare

less fees” that he claims but rather only the “Fare” less fees that he alleges he has

already been paid (see Section IV., A.), he is not entitled to additional wages and

the Court must dismiss his Labor Code and PAGA claims.

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V. CONCLUSION

For all of the foregoing reasons, Defendants respectfully request that this

Court grant their motion to dismiss in its entirety and with prejudice.

Dated: September 14, 2017 MORGAN, LEWIS & BOCKIUS LLPMolly M. Lane Jason S. Mills Joseph V. Marra III Nicholas E. Frontera

By /s/ Nicholas E. Frontera

Attorneys for Defendant RASIER, LLC, RASIER-CA, LLC and UBER TECHNOLOGIES, INC.
