People v. Maplebear, Inc. CA4/1

Filed 2/17/21 P. v. Maplebear, Inc. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE OF THE STATE OF D077380
CALIFORNIA,

Plaintiff and Respondent, (Super. Ct. No. 37-2019-
00048731-CU-MC-CTL)
v.

MAPLEBEAR, INC.,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,
Timothy Taylor, Judge. Reversed and remanded.
Keker, Van Nest & Peters, Rachael E. Meny, Benjamin Berkowitz,
Ryan K. Wong, Erin E. Meyer, Julia L. Allen, Donna Zamora-Stevens, Taylor
Reeves and Melissa Cornell for Defendant and Appellant.
Littler Mendelson, Bruce J. Sarchet and Michael J. Lotito for
Independent Women’s Law Center as Amicus Curiae on behalf of Defendant
and Appellant.
Jones Day, Craig E. Stewart and Eric Tung for Chamber of Commerce
of the United States of America, California Grocers Association, Bay Area
Council, San Francisco Chamber of Commerce, and Valley Industry and
Commerce Association as Amici Curiae on behalf of Defendant and
Appellant.
Orrick, Herrington & Sutcliffe, Haley Jankowski, Julia C. Riechert and
Jessica R. Perry for David R. Henderson and Other Academics and
Economists as Amici Curiae for Defendant and Appellant.
Willenken, Amelia L. B. Sargent and Kenneth M. Trujillo-Jamison for
California Asian Pacific Chamber of Commerce, California Hispanic
Chambers of Commerce, California State National Action Network, Los
Angeles Metropolitan Churches, Los Angeles Urban League, National Action
Network Sacramento Chapter Inc., National Asian American Coalition,
National Diversity Coalition, and National Newspaper Publishers
Association as Amici Curiae on behalf of Defendant and Appellant.
Durie Tangri, Benjamin B. Au and Raghav R. Krishnapriyan for
Independent Drivers Association of California, Tony Do, and Jim Pyatt as
Amici Curiae on behalf of Defendant and Appellant.
Mara W. Elliott, City Attorney, Mark Ankcorn, Chief Deputy City
Attorney, Kevin B. King, Deputy City Attorney for Plaintiff and Respondent.

Maplebear, Inc. dba Instacart (hereinafter “Instacart”) appeals from a
preliminary injunction enjoining and restraining Instacart from “failing to
comply with California employment law with regard to its Full-Service
Shopper employees within the City of San Diego.” The superior court issued
the injunction after finding the People of the State of California, acting by
and through the San Diego City Attorney, (hereinafter “the City”)
demonstrated a probability of success on their claim Instacart was
improperly classifying Full-Service Shoppers as independent contractors, and

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not employees, based on the ABC test set forth in Dynamex Operations West,
Inc. v. Super. Ct. (2018) 4 Cal.5th 903 (Dynamex).
Instacart asserts the superior court lacked authority to issue the
preliminary injunction because it had previously filed a motion to compel
arbitration and a request to stay the action pending resolution of the motion
pursuant to Code of Civil Procedure section 1281.4. Alternatively, Instacart
asserts the superior court erred by granting the preliminary injunction
because the Full-Service Shoppers are motor carriers and a federal statute
(49 U.S.C. § 13102(14), “the FAAAA”) preempts application of the ABC test to
motor carriers, the City did not prove a probability of success under the ABC
test even if it is applicable, and the balance of harms did not weigh in favor of
granting the preliminary injunction. Instacart also asserts the injunction is
impermissibly vague.
In November, while this appeal was pending, the people of California
voted to enact Proposition 22, “App-Based Drivers as Contractors and Labor
Policies Initiative (2020)” (hereinafter “Proposition 22”). Instacart requests
this court take judicial notice of Proposition 22 and asserts Proposition 22 is a
significant change in law that directly permits the classification of the Full-
Service shoppers as independent contractors. Accordingly, Instacart
contends the injunction must be reversed and the matter remanded to the
superior court for further proceedings in light of Proposition 22.
We are not persuaded the superior court lacked the authority to rule on
the preliminary injunction motion, but agree the preliminary injunction as
issued is impermissibly vague, particularly in light of the changes to the law
effectuated by Proposition 22. We therefore reverse the order and remand

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the matter to the superior court for further proceedings consistent with this

opinion.1
FACTUAL AND PROCEDURAL BACKGROUND
A
In April 2019, the California Supreme Court adopted the standard
commonly referred to as the “ABC test” for determining whether a worker is
an employee or an independent contractor. (See Dynamex, supra, 4 Cal.5th
at pp. 916-917.) “Under this test, a worker is properly considered an
independent contractor to whom a wage order does not apply only if the
hiring entity establishes: (A) that the worker is free from the control and
direction of the hirer in connection with the performance of the work, both
under the contract for the performance of such work and in fact; (B) that the
worker performs work that is outside the usual course of the hiring entity's
business; and (C) that the worker is customarily engaged in an independently
established trade, occupation, or business of the same nature as the work
performed for the hiring entity.” (Ibid.)

1 We have read and considered the amicus curiae briefs submitted by the
following parties: The Chamber of Commerce of the United States of
America, California Grocers Association, Bay Area Council, San Francisco
Chamber of Commerce, and Valley Industry and Commerce Association
(collectively, “CCUS”); The Independent Women’s Law Center (“IWLC”);
David R. Henderson and other academics and economists (collectively,
“Henderson”); The Independent Drivers Association of California and Tony
Do and Jim Pyatt (collectively “Individual Shoppers”); and The California
Asian Pacific Chamber of Commerce, California Hispanic Chambers of
Commerce, California State National Action Network, CA-NAACP State
Conference, Los Angeles Metropolitan Churches, Los Angeles Urban League,
National Action Network Sacramento Chapter Inc., National Asian American
Coalition, National Diversity Coalition, and National Newspaper Publishers
Association (“Communities-of-Color Organizations”).
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 Thereafter, in September 2019, the California Legislature enacted
Assembly Bill No. 5, which clarified and codified the ABC test set forth in
Dynamex and gave city attorneys meeting certain criteria the authority to
seek injunctive relief to prevent the misclassification of employees as
independent contractors based on the ABC test. (See Assem. Bill No. 5; Lab.
Code, § 2750.3 [eff. Jan. 1, 2020; repealed by Stats. 2020, ch. 38 (Assem. Bill
No. 2257), § 1, eff. Sept. 4, 2020]; Lab. Code, § 2775 [replacing § 2750.3].) The
Legislature acknowledged the legally-defined exceptions to the application of
the ABC test and further indicated, if a court of law rules the ABC test
cannot be applied to a particular context, the alternative test set forth in
S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48
Cal.3d 341 (Borello) shall govern. (See Lab. Code, § 2775, subd. (b)(3); prev.
Lab. Code, § 2750.3, subd. (a)(3).)
B
Founded in 2012, Instacart partners with national, regional, and local
retail grocers to provide same-day shopping, pickup, and delivery services to
consumers across the United States and Canada through either the Instacart
website or the Instacart smartphone application software program (the
“Instacart App”).
Instacart provides a consumer-facing virtual storefront for retailers.
Individual retailers decide which items to offer and at what price, and the
Instacart platform allows them to monitor their virtual storefronts and
update inventory on a daily basis. Customers are able to browse a particular
store’s inventory via the Instacart website or the Instacart App and place
orders for delivery during a specified timeframe.
Instacart hires shoppers to fulfill and deliver the customers’ orders.
Instacart employs In-Store Shoppers that gather groceries but do not deliver

5
them as part-time employees and Full-Service Shoppers that both gather and

deliver groceries as independent contractors.2 There are approximately
2,000 active Full-Service Shoppers in San Diego.
Full-Service Shoppers are able to schedule shifts by picking from those
available on the Instacart App. They can choose the days, times, and number
of hours they wish to work. If a Full-Service Shopper works at least 90 hours
in a three-week period or 25 hours over the previous three weekends, the
shopper is granted early access privileges for scheduling shifts.
If a Full-Service Shopper chooses to schedule a shift, the shopper
begins receiving batch (grocery order) notifications once the shift begins.
When a notification is received, the Instacart App displays information about
the batch, including the store location, the distance to the delivery location,
the number of items in the order, and the compensation offered to the
shopper for completing the batch. Each batch is offered for approximately
four minutes. If the shopper does not accept the batch in the allotted time, a
new batch will be offered. If a Full-Service Shopper fails to accept a batch,
they receive a “reliability incident”, and if they fail to accept four batches
during a single shift, the shift is automatically terminated. A Full-Service
Shopper has the option to decline a batch, without penalty, during the last
half-hour of a scheduled shift.
Once a Full-Service Shopper accepts a batch, the Instacart App
displays the list of items in the order and provides a suggested route through
the grocery store to collect the items. The shopper must scan or manually
input each item collected. The shopper uses an Instacart issued debit card to
pay for the items and, once all items are collected and paid for, the Instacart
App displays the delivery address for the order.

2 The preliminary injunction applies only to Full-Service Shoppers.
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 Instacart added an “On-Demand” option for Full-Service Shoppers in
July 2019. This option allows Full-Service Shoppers to view a list of
available batches at any time. If there are batches available, the shopper can
simply select the batches they would like to accept, without scheduling a
shift. In some areas of California, Instacart no longer offers shifts for Full-
Service Shoppers and all deliveries are done through the On-Demand option.
Approximately one-half of deliveries completed in January 2020 were done
through the On-Demand option. Where shifts are still available, a Full-
Service Shopper has the option of working shifts, working On-Demand, or
doing a combination of both. If a shopper gets logged out of a shift for failing
to accept batches, the shopper may still work On-Demand.
Full-Service Shoppers are not paid hourly. They receive a payment for
each batch of groceries they deliver. Instacart sets the amount for each
batch, considering factors such as the miles from the store to the customer’s
home and the number of items and weight of the order. Instacart does not
compensate Full-Service Shoppers for time spent waiting for batches or miles
driven to the store. Instacart does not offer paid breaks or overtime pay but
does provide the option to take an unpaid 20-minute break during a
scheduled shift. Instacart does not provide reimbursement for shopping
related expenses, such as paid parking or insulated shopping bags that
shoppers are required to carry.
C
On September 13, 2019, the City filed a complaint against Instacart
alleging Instacart maintained an unfair competitive advantage by
misclassifying Full-Service Shoppers as independent contractors. Relying on
the ABC test set forth in Dynamex, the City asserted Instacart could not meet
its burden to show the Full-Service Shoppers were independent contractors

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because it could not show “(A) its [Full-Service] Shoppers are free from the
control and direction of Instacart in connection with the performance of the
work, both under the contract for the performance of such work and in fact;
(B) its Shoppers perform work that is outside the usual course of Instacart’s
business; and (C) its Shoppers are customarily engaged in an independently
established trade, occupation, or business of the same nature as the work
performed for Instacart.” (See Dynamex, supra, 4 Cal.5th at pp. 916-917.)
As a result of the misclassification, the City alleged Instacart avoided
paying Full-Service Shoppers a lawful wage, unlawfully deferred substantial
expenses to the shoppers, failed to comply with numerous provisions of the
Labor Code, and maintained an unfair advantage over its competitors by
contributing less to California’s unemployment insurance, disability
insurance, and other state and federal taxes. The City sought penalties
based on the Labor Code violations, restitution for misclassified employees,
and an order requiring Instacart to properly classify Full-Service Shoppers as
employees.
On November 7, 2019, Instacart filed a motion to compel arbitration
based on arbitration clauses in the independent contractor agreements
Instacart required Full-Service Shoppers to sign as a condition of their
employment. Instacart also moved for an order staying the litigation
pursuant to Code of Civil Procedure section 1281.4, immediately and until
resolution of the arbitration motion. The motion listed the hearing date as
February 28, 2020.
On January 29, before the February 28 hearing and before the superior
court ruled on Instacart’s stay request, the City filed an ex parte application
for a temporary restraining order enjoining Instacart from misclassifying
Full-Service Shoppers as independent contractors and an order to show cause

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why a preliminary injunction should not be issued. Instacart filed an
opposition, along with several supporting declarations, shortly thereafter on
February 3.
The superior court held a hearing regarding the ex parte application on
February 4. The court indicated it was not inclined to grant the temporary
restraining order on an ex parte basis, given the significant and factually
intensive issues. Instacart asserted it had already requested a stay pending
the motion to compel arbitration and, thus, the court should not hear the
motion for preliminary injunction prior to the motion to compel arbitration.
The court set the matter as a regularly noticed motion for a preliminary
injunction, to be heard on February 14, and deemed the ex parte application
as the opening brief and Instacart’s opposition as the reply.
The superior court issued a tentative ruling before the hearing
indicating it intended to grant the preliminary injunction. However, the
court indicated the proposed order was not acceptable and ordered the City to
submit a new proposed order re-drafted as a prohibitory injunction.
The court heard argument on the preliminary injunction motion on
February 14, the same day the City filed its opposition to Instacart’s motion
to compel arbitration and to stay the matter. At the hearing, Instacart did
not raise the issue of the motion to compel arbitration or the associated
request that the court stay the matter but did request that the court stay any
injunction it intended to issue.
On February 18, the superior court confirmed the tentative ruling and
granted a preliminary injunction. The court noted the City had provided a
revised proposed order that “was little better”. The court therefore signed its
own significantly simplified version of the preliminary injunction order. The
order states, Instacart “is hereby enjoined and restrained from failing to

9
comply with California employment law with regard to its Full-Service
Shopper employees within the City of San Diego.” The court noted the
preliminary injunction was not a final order and was subject to modification
or dissolution at any time based on a material change in the facts or law upon
which the injunction was granted. In addition, the court noted enforcement
of the injunction was stayed for 10 days pursuant to Code of Civil Procedure
section 918.
On February 25, before the 10-day stay expired, Instacart filed an ex
parte application asking the superior court to confirm the preliminary
injunction would be automatically stayed upon Instacart’s filing of a notice of
appeal or, in the alternative, to stay enforcement of or dissolve the
preliminary injunction. The superior court denied the request without
prejudice and indicated it would rule on a stay after Instacart filed a notice of
appeal. Instacart filed a notice of appeal from the preliminary injunction
order a few days later and the superior court stayed the preliminary
injunction pending this appeal.
D
While the present appeal was pending, the people of California voted to
enact Proposition 22, and Instacart requested this court take judicial notice of

Proposition 22.3 In its reply brief, Instacart argues the passage of

3 We granted Instacart’s unopposed Request for Judicial Notice via
separate order on December 18, 2020. On January 26, 2021, the City filed an
additional request that we take judicial notice of an emergency petition for
writ of mandate filed in the California Supreme Court regarding Proposition
22 (Castellanos v. State of Cal., Jan. 12, 2021, No. S266551) and an order
from the superior court in People v. Uber Technologies, Inc. (Cal.Super., Aug.
10, 2020, No. CGC-20-584402) denying a request for a stay pursuant to Code
of Civil Procedure section 1281.4. We hereby deny the City’s request as
neither document is necessary to the resolution of this appeal. (See County of
San Diego v. State of California (2008) 164 Cal.App.4th 580, 613, fn. 29.)
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Proposition 22 requires this court to vacate the preliminary injunction and
remand the matter to the superior court for further proceedings regarding
the impact of Proposition 22.
As briefing on the appeal was otherwise complete, we permitted the
City an opportunity to file a supplemental brief responding to Instacart’s
assertions regarding Proposition 22. In its supplemental brief, the City
concedes the applicability of Proposition 22 is a fact-based inquiry and the
matter should be remanded to the superior court for that purpose but asserts
reversal of the preliminary injunction is unwarranted.
DISCUSSION
I
We turn first to Instacart’s assertion the superior court did not have
authority to rule on the City’s motion, or to issue a preliminary injunction,
because the matter should have been stayed pursuant to Code of Civil
Procedure section 1281.4 pending resolution of its motion to compel
arbitration.
The City contends Instacart’s motion for a stay was not before the court
when the court heard the preliminary injunction motion. We agree.

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 Code of Civil Procedure section 1281.4 states, in part:
“If an application has been made to a court of competent
jurisdiction, whether in this State or not, for an order to
arbitrate a controversy which is an issue involved in an
action or proceeding pending before a court of this State
and such application is undetermined, the court in which
such action or proceeding is pending shall, upon
motion of a party to such action or proceeding, stay
the action or proceeding until the application for an
order to arbitrate is determined and, if arbitration of
such controversy is ordered, until an arbitration is had in
accordance with the order to arbitrate or until such earlier
time as the court specifies.” (Emphasis added.)
Here, Instacart filed its notice of motion to compel arbitration on
November 7, 2019. The motion papers included a hearing date of February
28, 2020. Instacart included the following statement in the notice of motion:
“Instacart also moves for an order staying this case immediately pursuant to
Code of Civil Procedure section 1281.4 until the instant motion is resolved.”
It included a similar statement at the end of the associated memorandum of
points and authorities in support of the motion and attached a proposed order
staying the action “pursuant to Code of Civil Procedure section 1281.4
pending the Court’s resolution of Instacart’s pending Motion to Compel
Arbitration.” Like the other filings, the proposed order indicated a hearing
date of February 28, 2020.
The City filed its ex parte application for a temporary restraining order
on January 29 and acknowledged, at the associated hearing on February 4,
that it was attempting to get an injunction prior to the ruling on Instacart’s
motion to compel arbitration. In response, Instacart stated it had already
asked for a stay pursuant to Code of Civil Procedure section 1281.4, and it
believed the stay would preclude any proceedings on the City’s motion until
after the motion to compel arbitration was resolved. The court refused to

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address the issue at that time and instead set the matter for a noticed motion
hearing on February 14. Instacart did not address the motion to compel
arbitration or the associated request for a stay at the preliminary injunction
hearing on February 14 and chose, instead, to address the merits of the
court’s tentative decision to issue a preliminary injunction.
Instacart now contends Code of Civil Procedure section 1281.4 required
the superior court to stay the action prior to ruling on the City’s motion for a
temporary restraining order or preliminary injunction, but, as noted,
Instacart’s motion was not scheduled to be heard until February 28, 2020,
after the preliminary injunction hearing. Instacart complains the court
allowed the City to “jump in front” of its motion, but Instacart had the same
procedural options at its disposal and could have, for example, filed the stay
request separately, along with a motion to shorten time. Instacart failed to
do so.
Instacart asserts nothing in Code of Civil Procedure section 1281.4
required it to file a separate pleading requesting a stay. We agree. However,
that does not mean the superior court was required to rule on the request for
a stay included in the larger filing prior to the noticed hearing date of
February 28, and Instacart provides no authority indicating that it does.
Indeed, the City only filed its opposition to that motion on February 14, the
same day the superior court heard argument on the City’s motion for
preliminary injunction.
Instacart relies on Twentieth Century Fox Film Corp. v. Superior Court
(2000) 79 Cal.App.4th 188 (Twentieth Century) to assert the stay was
mandatory and the superior court had no discretion to deny it. There,
Twentieth Century filed a motion to stay the case pursuant to Code of Civil
Procedure section 1281.4 and the superior court denied the motion. (Id. at

13
pp. 190-191.) Accordingly, the appellate court addressed the merits of the
superior court’s denial of the motion, not the timing. (Id. at p. 192.) Here,
the superior court did not deny Instacart’s request for a stay; it simply ruled
on another expedited motion first.
In any event, Instacart suffered no prejudice as a result of the superior
court’s ruling on the City’s motion for preliminary injunction. The superior
court stayed the preliminary injunction pending the outcome of this appeal
and we now reverse the injunction as impermissibly vague.
II
The preliminary injunction enjoins and restrains Instacart “from failing
to comply with California employment law with regard to its Full-Service
Shopper employees within the City of San Diego.” Instacart asserts the order
is impermissibly vague and must be reversed. We agree.
An injunction cannot “satisfy the requirements of notice and fair trial
which are inherent in the due process clause of the Fourteenth Amendment”
if it is “ ‘so vague that [people] of common intelligence must necessarily guess
at its meaning and differ as to its application . . . .’ ” (In re Berry (1968) 68
Cal.2d 137, 156-157.) Put more simply, for an injunction to be valid, the
enjoined party must be able to determine what they may or may not do in
order to comply with the injunction. (Ibid.; City of Redlands v. County of San
Bernardino (2002) 96 Cal.App.4th 398, 415 (City of Redlands).) While a court
may enjoin continued unlawful activity related to the allegations prompting
the request for an injunction, a court “may not issue a broad injunction to
simply obey the law. . . .” (City of Redlands, at p. 416; N.L.R.B. v. Express
Pub Co. (1941) 312 U.S. 426, 435-436.)
We review the superior court’s decision to issue a preliminary
injunction for an abuse of discretion and defer to the court’s factual findings

14
so long as they are supported by substantial evidence. (People v. Uber
Technologies, Inc. (2020) 56 Cal.App.5th 266, 282.) However, we review
vagueness claims, grounded in the constitutional concepts of fair warning and
due process, de novo. (Ibid.; In re P.O. (2016) 246 Cal.App.4th 288, 299.) In
determining whether an injunction provides sufficient notice of the
proscribed or compelled conduct, we consider the language of the injunction
itself in light of the entire record. (City of Redlands, supra, 96 Cal.App.4th at
pp. 415-416.)
Viewed in the context of the entire record, the injunction here is
impermissibly vague. It enjoins Instacart from failing to comply with
California employment law with regard to its Full-Service Shoppers, but does
not explain what Instacart needs to do, or not do, in order to comply with the
law.
In the associated minute order, the superior court explains the City
demonstrated a probability of success on the merits because it made “a very
plausible showing of improper classification under the ABC test.” The City
asserts Instacart is well versed in the ABC test the court referred to and,
therefore, must understand what it needs to do to obey the law. Notably,
though, the court rejected more specific language enjoining Instacart from
misclassifying the Full-Service Shoppers as independent contractors, and
suggested Instacart could either make the Full-Service Shoppers employees
or make them “truly free agents” by looking at “Borello or whatever test you
think applies, and [trying] to bring yourself within that.”
Counsel for Instacart indicated it was not clear what additional steps
the court believed would be necessary to make the Full-Service Shoppers
truly free agents. After further discussion, the court stated, “There are
cutting-edge things here. There are undeveloped areas of law. A multitude

15
of them.” The court further indicated additional legal proceedings, including
the present appeal, were necessary for Instacart to have “the certainty of
knowing what is required of it.” At a subsequent hearing regarding
Instacart’s request to stay the preliminary injunction pending appeal, the
court noted, “it was intentional on my part to say, go comply with the Law.”
The court explained its reason for doing so was because Instacart knows more
about its business than the court and “has excellent lawyers who can take
this apart and figure out what they need to do to bring themselves into
compliance.”
Thus, the record makes clear the superior court drafted the injunction
in a manner that requires Instacart to determine how to comply with a
decidedly undeveloped area of law. By doing so, the court failed to provide
adequate notice of the conduct proscribed by the injunction. (See City of
Redlands, supra, 96 Cal.App.4th at pp. 415-416.) Given the record in this
case, there can be no doubt people of common intelligence would differ as to
the meaning and application of the relevant law in this context. (See In re
Berry, supra, 68 Cal.2d at pp. 156-157.)
The issue is further compounded by the recent passage of Proposition

22.4 Proposition 22 allows “app-based drivers” to be classified as
independent contractors, so long as they meet four express conditions set
forth in the statute, “[n]otwithstanding any other provision of law, including,
but not limited to, the Labor Code[.]” The parties agree Proposition 22
establishes an additional exemption from the application of the ABC test—

4 The election results were certified on December 11, 2020, and
Proposition 22 is now California state law. (See Cal. Const., art. II, § 10(a)
[“An initiative statute or referendum approved by a majority of votes cast
thereon takes effect on the fifth day after the Secretary of State files the
statement of the vote for the election at which the measure is voted on . . .”].)
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the legal basis upon which the superior court issued the preliminary
injunction—and thus presents an additional defense to Instacart. Although
the City contends Instacart is unlikely to prove Full-Service Shoppers meet
the conditions set forth in Proposition 22, it concedes the superior court is the
“far more appropriate place to hear, weigh, and find facts and that court
should be afforded the first opportunity to reconsider its own ruling.”
The City argues we should nevertheless affirm the injunction as the
superior court will be able to consider the impact of Proposition 22 once the
matter is returned. Indeed, it appears the superior court has already
contemplated this possibility insofar as it expressly stated the injunction is
subject to modification or dissolution based on a material change in facts or
law. However, as an injunction provides ongoing relief, it must be reviewed
“under the law in effect at the time the appellate court renders its opinion.”
(See Hunt v. Super. Ct. (1999) 21 Cal.4th 984, 999; Consumer Watchdog v.
Dep’t of Managed Health Care (2014) 225 Cal.App.4th 862, 879.) Here, as
discussed, the injunction requires Instacart to follow the law, but the law has
now changed, and the parties disagree as to the impact of that change,
namely whether Proposition 22 precludes the application of the ABC test in
this case. No court has addressed this issue. Accordingly, there is no way for
Instacart to know whether it is, or is not, complying with the law or the
injunction, and the injunction must be reversed. (See City of Redlands,
supra, 96 Cal.App.4th at pp. 415-416; In re Berry, supra, 68 Cal.2d at pp. 156-
157.)
We acknowledge the goal of the superior court was to permit this court
to provide clarity to the parties regarding the scope and applicability of
Dynamex and the ABC test in an expeditious manner. However, we decline
to do so under the present posture, particularly given the significant change

17
in law and the distinct possibility the ABC framework no longer applies in
this case.
DISPOSITION
The superior court’s order granting a preliminary injunction is reversed
and the matter is remanded to the superior court for further proceedings
consistent with this opinion.

McCONNELL, P. J.

WE CONCUR:

IRION, J.

DATO, J.

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