Rogers v. Lyft CA1/1

Filed 7/21/22 Rogers v. Lyft CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JOHN ROGERS, et al.,
Plaintiffs and Appellants,
A160182
v.
LYFT, INC., (San Francisco City and County
Super. Ct. No. CGC-20-583685)
Defendant and Respondent.

Plaintiffs John Rogers, Amir Ebadat, and Hany Farag, rideshare
drivers for Lyft, Inc. (Lyft), appeal from the superior court’s order compelling
arbitration of a claim for injunctive relief contained in their putative class
action alleging that defendant Lyft misclassified them as independent
contractors. They also appeal the court’s denial of their application for an
emergency preliminary injunction. In November 2020, while this appeal was
pending, California voters passed Proposition 22, the “App-Based Drivers as
Contractors and Labor Policies Initiative” which generally classified app-
based drivers as independent contractors.
Plaintiffs assert two bases for their appeal. First, they contend that
notwithstanding the passage of Proposition 22, an actual controversy remains
because they would have been entitled to incidental relief and attorney fees
had the preliminary injunction been granted. Second, plaintiffs contend that
the preliminary injunction seeks public injunctive relief which cannot be

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compelled to arbitration. We conclude neither order is appealable and
dismiss this appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
Lyft operates an app-based ridesharing platform that matches people
seeking local rides with people willing to provide those rides. Plaintiffs are
rideshare drivers who have used the Lyft platform in California. To use the
Lyft platform, drivers must download the Lyft App and consent to the Terms
of Service Agreement (TOS). In section 17 of the TOS, drivers agree to
submit all disputes with Lyft to binding arbitration and waive the right to
seek relief on a class, collective, or representative basis. Drivers may choose
to opt out of arbitration. None of the named plaintiffs in this action opted
out.
In Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th
903, 959-961, the Supreme Court established a three-part test, commonly
known as the ABC test, to determine whether a worker is an employee or an
independent contractor. Effective January 1, 2020, Assembly Bill No. 5
(2019-2020 Reg. Sess.) (Stats 2019, ch 296 § 2) codified the holding in
Dynamex, in part by clarifying that a company’s workers must be classified
as employees if the work they perform is not outside the usual course of the
company’s business. (See former Lab. Code, § 2750.3, subd. (a)(1).)
On March 12, 2020, Rogers filed a putative class action in the Superior
Court of the City and County of San Francisco alleging that Lyft misclassified
its drivers as independent contractors, rather than as employees. The
complaint asserted a single claim for failure to provide paid sick leave under
Labor Code section 246.
Rogers filed an ex parte application for an emergency preliminary
injunction seeking to enjoin Lyft from classifying its drivers as independent

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contractors. The hearing on the ex parte application was set for March 19,
2020. However, on that day, Lyft removed the case to federal court under the
Class Action Fairness Act of 2005 (28 U.S.C. § 1332(d)). Plaintiffs submitted
their emergency preliminary injunction request to the District Court for the
Northern District of California that same day. Lyft filed a motion in the
district court seeking to compel individual arbitration of Rogers’ claims.
While the emergency preliminary injunction and Lyft’s motion to
compel arbitration were pending, Rogers filed a first amended class action
complaint (FAC) in the district court, adding Ebadat and Farag as plaintiffs1
and augmenting the complaint by adding claims for failure to reimburse for
business expenses and pay minimum wage, and seeking declaratory and
injunctive relief for unfair business practices under the Unfair Competition
Law (Bus. & Prof. Code, § 17200, et seq.; UCL). The FAC again alleged that
Lyft misclassified its drivers as independent contractors rather than as
employees. Among other things, the FAC sought “a public injunction
requiring Lyft to comply with the California Labor Code by classifying its
drivers as employees and providing them with the protections of the Labor
Code.”2 (Italics added.)
The district court granted in part and denied in part Lyft’s motion to
compel arbitration. (Rogers v. Lyft, Inc. (2020) 452 F.Supp. 3d 904, 909

1In a letter dated July 5, 2022, Lyft’s counsel informed this court that
Ebadat and Farag settled their claims against Lyft in 2021. At oral
argument, plaintiffs’ counsel indicated that she was attempting to verify this
information with her clients.
2A public injunction “has the primary purpose and effect of prohibiting
unlawful acts that threaten future injury to the general public.” (McGill v.
Citibank, N.A. (2007) 2 Cal.4th 945, 951 (McGill).)

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(Rogers I).) The court first denied plaintiffs’ request for an emergency
preliminary injunction, finding that “court-ordered reclassification of Lyft
drivers prior to arbitration would displace, rather than preserve, the
arbitration process.” (Id. at p. 913.) The court next ruled that the Federal
Arbitration Act (9 U.S.C. §§ 1-16) applied, (Rogers I. at p. 917), and granted
Lyft’s motion to compel arbitration as to the FAC’s claims for individualized
relief. (Id. at p. 918.) The court also struck the FAC’s class allegations.3
(Ibid.) Finally, the court determined that it lacked jurisdiction as to
plaintiffs’ claim for public injunctive relief (id. at p. 919), remanding the case
to the superior court to resolve whether the claim actually sought a private
injunction, which would be subject to arbitration, or a public injunction,
which would be exempt from arbitration.4 (Id. at pp. 920-921.)
Upon remand, plaintiffs filed another ex parte application for an
emergency preliminary public injunction in the superior court, seeking to
enjoin Lyft from “misclassifying its drivers in California as independent
contractors and thereby denying these workers their rights under the Labor
Code” and under two municipal ordinances pertaining to sick leave. That
same day, Lyft filed a petition to compel arbitration and stay the case.
Following a hearing on the parties’ motions, the superior court issued a
comprehensive order. First, it granted Lyft’s motion to compel arbitration.
The court concluded that plaintiffs’ request for an emergency preliminary
injunction constituted a request for private injunctive relief, not public. As

3 The Ninth Circuit has since affirmed the district court’s order
compelling arbitration of the non-injunctive claims. (See Rogers v. Lyft, Inc.
(9th Cir. 2022) Case No. 20-15689 2022 WL 474166.)
4 The district court concluded that plaintiffs lacked Article III standing
to proceed in federal court on their claim for public injunctive relief. (Rogers
I, supra, at pp. 919-920.)

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such, it was arbitrable. The court also considered plaintiffs’ emergency relief
request, recognizing that California law provides courts with the ability to
issue a provisional remedy pending arbitration under Code of Civil Procedure
section 1281.8. (Code Civ. Proc., § 1281, subd. (b). The court denied the relief
after concluding that the denial would not cause plaintiffs to suffer
irreparable harm. Plaintiffs filed a petition for writ of supersedeas and
requested a stay of the superior court’s order. On May 27, 2020, this court
denied the petition and cautioned that an order granting a petition to compel
arbitration is not appealable. Two days later, plaintiffs filed their notice of
appeal.
While this appeal was pending, Proposition 22 passed on November 3,
2020, abrogating Assembly Bill No. 5. In doing so, Proposition 22 declared
“app-based drivers” to be independent contractors—not employees—if the
rideshare company (in this case, Lyft) provides those drivers with specific
wage and hour protections. (See Bus. & Prof. Code. §§ 7451, 7453.)
Proposition 22 took effect on December 16, 2020.5
II. DISCUSSION
As a threshold matter, Lyft argues that this appeal should be dismissed
because plaintiffs have appealed from unappealable interlocutory orders. We
agree.
A. Orders Compelling Arbitration Are Not Appealable
In their opening brief, plaintiffs purport to appeal from the superior
court’s “grant of Lyft’s Petition to Compel Arbitration,” which they assert “is

5 The constitutionality of Proposition 22 is currently on appeal before
Division Four of this court in Castellanos, et al., v. The State of California, et
al., Case No. RG21088725 (Cal Sup. Ct. Aug. 20, 2021), pending appeal
A164655.

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appealable pursuant to [Code of Civil Procedure] section 1294
[subdivision](a).” This assertion is manifestly incorrect.
Civil Code of Procedure section 1294, subdivision (a) provides: “An
aggrieved party may appeal from . . . [a]n order dismissing or denying a
petition to compel arbitration.” (Italics added.) Here, the superior court
granted Lyft’s petition to compel arbitration. The right to appeal is solely
statutory (Porter v. United Services Automobile Assn. (2001) 90 Cal.App.4th
837, 839–840), and no statute permits an appeal from an order compelling
arbitration: “[O]rders compelling arbitration are considered interlocutory and
are not appealable.” (Zembsch v. Superior Court (2006) 146 Cal.App.4th 153,
160 (Zembsch).) Such an order may be reviewed only “from a subsequent
judgment on the [arbitration] award.” (Ashburn v. AIG Financial Advisors,
Inc. (2015) 234 Cal.App.4th 79, 94.) “ ‘The rationale behind the rule making
an order compelling arbitration nonappealable is that inasmuch as the order
does not resolve all of the issues in controversy, to permit an appeal would
delay and defeat the purposes of the arbitration statute.’ ” (Zembsch, at
p. 160.)
However, “California courts have held that writ review of orders
compelling arbitration is proper in at least two circumstances: (1) if the
matters ordered arbitrated fall clearly outside the scope of the arbitration
agreement or (2) if the arbitration would appear to be unduly time consuming
or expensive.” (Zembsch, supra, 146 Cal.App.4th at p. 160.) Neither
circumstance is present here. We therefore decline to treat this improper
appeal as a petition for writ of mandate. (See Roden v. AmerisourceBergen
Corp. (2005) 130 Cal.App.4th 211, 213–214 [“extraordinary relief is supposed
to be extraordinary” and “not available as a matter of course”].)

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 In any event, in their reply brief plaintiffs change course, expressly
stating that they are not appealing from the order compelling arbitration.6
Accordingly, to the extent plaintiffs purport to appeal from the superior
court’s order granting the motion to compel arbitration, the appeal is
dismissed.
B. Proposition 22 Mooted The Appeal From The Order Denying
The Preliminary Injunction
1. The Parties’ Contentions
Lyft contends that the only remaining issue in this appeal, the denial of
plaintiffs’ request for an emergency preliminary public injunction ordering
Lyft to reclassify its drivers as employees, should be dismissed as moot
because plaintiffs “have expressly abandoned the preliminary injunction
request that is the entire basis for this interlocutory appeal.” Lyft urges that
“[a] ruling by this Court will not result in any preliminary injunction being
issued,” and argues that plaintiffs are seeking an advisory opinion only.
In their opening brief, plaintiffs expressly waive any argument as to
“whether an injunction remains appropriate following the passage of
Proposition 22,” acknowledging that “a decision on the applicability of
Proposition 22 would need to be addressed by the Superior Court in the first
instance.” However, they assert that this case “presents a live case and
controversy” because Lyft drivers would have received paid sick leave during
the COVID-19 pandemic if the injunction had issued, and a reversal here
would entitle them to this incidental relief.7 On this basis, they contend that

6 Lyft’s motion to strike a portion of plaintiffs’ reply brief is denied.
7 In a footnote in the opening brief and in their reply brief, plaintiffs
also assert they would be entitled to attorney fees under Code of Civil
Procedure section 1201.5. However, the case they cite for that proposition is
distinguishable in that it involved the issuance of a permanent injunction,

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they “still have a live claim for incidental relief.” Alternatively, they argue
that this appeal should be heard because it “presents an important question
of state law.” We agree with Lyft that the appeal from the denial of the
emergency preliminary injunction is moot and should be dismissed.
2. Applicable Legal Principles
“A preliminary injunction is a device to protect the rights of litigants
pending a final determination of the merits of the action; it is but an adjunct
to the action and its fate is hinged to the main action. The general purpose of
such an injunction is to preserve the status quo until a final determination of
the merits of the action.” (City of Oakland v. Superior Court (1982) 136
Cal.App.3d 565, 569.) Here, the issue underlying the preliminary injunction
was rendered moot when the voters passed Proposition 22 which determined
that app-based drivers are independent contractors. An appeal is moot when
a decision of “the reviewing court ‘can have no practical impact or provide the
parties effectual relief.’ ” (MHC Operating Limited Partnership v. City of San
Jose (2003) 106 Cal.App.4th 204, 214 (MHC).)
“It is well settled that an appellate court will decide only actual
controversies and that a live appeal may be rendered moot by events
occurring after the notice of appeal was filed. We will not render opinions on
moot questions or abstract propositions, or declare principles of law which
cannot affect the matter at issue on appeal.” (Daily Journal Corp. v. County
of Los Angeles (2009) 172 Cal.App.4th 1550, 1557; see also Finnie v. Town of
Tiburon (1988) 199 Cal.App.3d 1, 10.) These principles apply to appeals from
orders denying preliminary injunctions. (Finnie, at p. 10.)

not a preliminary injunction. (See Indio Police Command Unit Assn. v. City
of Indio (2014) 230 Cal.App.4th 532, 534, quoting Carson Citizens for Reform
v. Kawagoe (2009) 178 Cal.App.4th 357, 364–365.) Regardless, the superior
court did not render any decision concerning attorney fees.

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 “ ‘ “It necessarily follows that when, pending an appeal from the
judgment of a lower court, and without any fault of the defendant, an event
occurs which renders it impossible for this court, if it should decide the case
in favor of plaintiff, to grant him [or her] any effectual relief whatever, the
court will not proceed to a formal judgment, but will dismiss the appeal.” ’ ”
(California Redevelopment Assn. v. Matosantos (2013) 212 Cal.App.4th 1457,
1484.) However, “ ‘the general rule governing mootness becomes subject to
the case-recognized qualification that an appeal will not be dismissed where,
despite the happening of the subsequent event, there remain material
questions for the court’s determination.’ ” (Biosense Webster, Inc. v. Superior
Court (2006) 135 Cal.App.4th 827, 835.) “[T]he burden of persuasion with
respect to mootness is on the respondent.” (Parkford Owners for a Better
Community v. County of Placer (2020) 54 Cal.App.5th 714, 721.)
3. Analysis
Lyft persuasively argues that claims for incidental damages or
restitution, such as those that plaintiffs advance here, are irrelevant to
whether a preliminary injunction appeal is moot. Lyft relies on Jomicra, Inc.
v. Cal. Mobile Home Dealers Assn. (1970) 12 Cal.App.3d 396 (Jomicra).
In Jomicra, the cross-complainants appealed from the denial of a
preliminary injunction, and the injunction request became moot during
appeal. They nevertheless opposed dismissal on the ground that “the issue of
damages has not been determined.” (Id. at p. 399.) The appellate court
dismissed the appeal, explaining that “[t]he issue of damages has not been
determined by the trial court and is not before this court on appeal,” (ibid.)
and observing that it would be improper to offer an “advisory opinion.” (Id. at
p. 400.) This holding is in accord with the bedrock principle that a

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preliminary injunction decision does not and cannot resolve a party’s claims
on the merits, including any claims for incidental damages or restitution.
“ ‘ “The granting or denial of a preliminary injunction does not amount
to an adjudication of the ultimate rights in controversy. It merely determines
that the court, balancing the respective equities of the parties, concludes
that, pending a trial on the merits, the defendant should or should not be
restrained from exercising the rights claimed by him.” ’ ” (Jomicra, supra,
12 Cal.App.3d 396 at p. 401.) An order granting (or denying) a preliminary
injunction is an interim order that “reflects nothing more than the superior
court’s evaluation of the controversy on the record before it at the time of its
ruling; it is not an adjudication of the ultimate merits of the dispute.” (People
ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1109, italics omitted.)
“ ‘ “Indeed, when the cause is finally tried it may be found that the facts
require a decision against the party prevailing on the preliminary
application.” ’ ” (Jomicra, supra, at p. 401.) An appeal from the denial of a
preliminary injunction is not rendered justiciable by a potential demand for
damages or restitution when the injunction itself is moot. (Id. at pp. 400–401
[“this court could not properly write a definitive opinion upon the merits of
the controversy between the parties on an appeal from an order granting or
denying a preliminary injunction”].)
Plaintiffs insist that there is still an “ongoing controversy” over
whether rideshare drivers who were using the Lyft platform are entitled to
“payments for sick leave they would have . . . received” under the UCL had
the requested injunction issued. They describe these proposed payments as a
request for retrospective “ancillary restitution” that “is akin to incidental
damages.” In arguing that an actual controversy exists, they rely heavily on
federal cases that do not construe California law, including Powell v.

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McCormack (1969) 395 U.S. 486 (Powell) and its progeny. The cases are
inapposite.
Powell concerned longtime congressman Adam Clayton Powell, Jr., who
was barred by the House of Representatives from taking his seat. (Powell,
supra, 395 U.S. at 489.) Powell sued and requested that the district court
issue a permanent injunction to regain his seat and his salary. (Id. at p. 493.)
The district court granted the respondents’ motion to dismiss the complaint
“ ‘for want of jurisdiction of the subject matter.’ ” The ruling was affirmed
and the Supreme Court granted certiorari. (Id.at p. 494) While the case was
being litigated, Powell was reelected and he was allowed to take his seat.
(Ibid.) The House defendants then asserted that Powell’s case was moot. (Id.
at pp. 495–496.) The Supreme Court disagreed, reasoning that because
Powell had an “obvious and continuing interest in his withheld salary,” there
remained a live case or controversy. (Id. at pp. 496–99.)
Plaintiffs’ attempt to analogize this case to Powell fails. Plaintiffs aver
that they also sought an injunction requiring their employer to pay them for
wrongfully withheld paid sick leave. Because the UCL authorizes restitution
and injunctive relief, they assert that they would have been entitled to
receive payments for paid sick leave had the injunction been granted. They
contend that these “incidental damages are sufficient to confer jurisdiction on
an appeal despite the injunctive relief request otherwise being mooted.”
Powell is distinguishable in that it did not concern an appeal from the denial
of a preliminary injunction. Rather, it was an appeal from a judgment of
dismissal of the entire action.8 As noted above, a preliminary injunction is a

8None of the other federal cases plaintiffs cite to are on point as none
involved the denial of a request for a preliminary injunction. Both Gibson v.
DuPree (8th Cir. 1981) 664 F.2d 175, 176–177, Wilson v. State of Nevada (9th
Cir. 1982) 666 F.2d 378, 380–381 involved the reversal of orders dismissing

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provisional remedy that is not determinative of the merits of a lawsuit.
Plaintiffs cite to Ammond v. McGahn (3rd Cir. 1976) 532 F.2d 325, 328, but
that case confirms that the “sole question” in an interlocutory appeal from a
preliminary injunction ruling is “whether the preliminary injunction was
properly granted [or denied].”
Additionally, plaintiffs correctly observe that under McGill, supra, 2
Cal.5th at 967, fn. 1 “claims for restitution are not ordinarily encompassed by
public injunctive relief requests, and thus ordinarily may be arbitrable.”
Plaintiffs suggest however, that this court “should recognize” that ancillary
restitution may be encompassed within a request for a public injunction. In
this regard, plaintiffs attempt to distinguish McGill supra, 2 Cal.5th at 967,
fn. 1 and the related case of Cruz v. PacifiCare Health Systems, Inc. (2003) 30
Cal.4th 303, 318, by arguing that neither case held “that ancillary restitution
can never constitute relief incidental to a public injunction request.” They
assert that “there is no case law barring this Court from finding that
Plaintiffs’ incidental relief here is part-and-parcel to their public injunction
request and therefore also non-arbitrable.”
No California case holds that plaintiffs can maintain an appeal from
the denial of a moot preliminary public injunction by asserting claims for
“ancillary restitution.” In the circumstances of this case, we decline to do so.

the plaintiff’s entire lawsuits as moot, not just their claims for injunctive
relief. In the two other cases, Chicago Fire Fighters Union Local No. 2 v. City
of Chicago (N.D. Ill. July 23, 2007, No. 88 C 3773) 2007 U.S.Dist.LEXIS
52910 and Ammond v. McGahn (3rd Cir. 1976) 532 F.2d 325, 328, the courts
considered and rejected arguments that aspects of the plaintiff’s claims had
become moot. In Ammond, that inquiry was directed at an order granting a
preliminary injunction, not an order denying one. In all of these cases except
Ammond, the plaintiffs had asserted damages claims for back pay in addition
to requests for injunctive relief.

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 Plaintiffs alternatively argue that this appeal “presents an important
issue of California law that affects the general public, namely, that public
injunctive relief is not limited to relief from unlawful business practices
related to consumer protection laws, but should also extend to protect the
public from the public harms caused by employers not providing workers with
mandated employment protections.” Plaintiffs maintain that thousands of
drivers and the public suffered because Lyft refused to provide paid sick leave
during COVID-19 causing drivers to work though they were or might be ill.
While plaintiffs concede that injunctive relief may no longer be appropriate,
they contend that this matter is justiciable because the same issues may
arise in the future through recurring waves of this pandemic.
The general rule regarding mootness is tempered by the court’s
discretionary authority to decide moot issues. When an action involves a
matter of continuing public interest that is likely to recur, a court may
exercise its inherent discretion to resolve that issue, even if an event
occurring during the pendency of the appeal normally would render the
matter moot. (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725,
746–747; MHC, supra, 106 Cal.App.4th at p. 214; Eye Dog Foundation v.
State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 542; Bullis
Charter School v. Los Altos School Dist. (2011) 200 Cal.App.4th 1022, 1033–
1034.)
Recent cases have addressed the application of the public injunction
doctrine in the employment context, including Clifford v. Quest Software Inc.
(2019) 38 Cal.App.5th 745 and Torrecillas v. Fitness Internat LLC (2020)
52 Cal.App.5th 485, 499-500. 9 Thus plaintiffs have not demonstrated that

9We observe that in Capriole v. Uber Techs., Inc. (9th Cir. 2021)
7 F.4th 854, 868, the plaintiffs argued their proposed injunction against

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these issues are likely to evade review. Accordingly, we decline to exercise
our discretionary authority and render what would amount to an advisory
opinion.
DISPOSITION
The appeal is dismissed. Costs are awarded to Lyft.

Uber’s classification of drivers for its ride-sharing platform as independent
contractors ranked as public injunctive relief. The Ninth Circuit disagreed,
explaining that “the relief sought by Plaintiffs . . . is overwhelmingly directed
at Plaintiffs and other rideshare drivers, and they would be the ‘primary
beneficiar[ies]’ of access to overtime and minimum wage laws.” (Id. at 870.)

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 WISS, J.

WE CONCUR:

HUMES, P. J.

MARGULIES, J.

A160182N


Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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