1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

JONATHAN R. BASS (State Bar No. 75779) 

SUSAN K. JAMISON (State Bar No. 131867) 

CLIFFORD E. YIN (State Bar No. 173159) 

SKYE LANGS (State Bar No. 287908) 

COBLENTZ PATCH DUFFY & BASS LLP 

One Montgomery Street, Suite 3000 

San Francisco, California 94104-5500 

Telephone: 415.391.4800 

Facsimile: 415.989.1663 

Email: ef-jrb@cpdb.com, 

ef-skj@cpdb.com, 

ef-cey@cpdb.com, 

efilingSDL@cpdb.com 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC., 

and RASIER, LLC 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION 

MARTIN DULBERG, individually, and on 

behalf of all others similarly-situated, 

Plaintiff, 

v. 

UBER TECHNOLOGIES, INC., and 

RASIER, LLC, 

Defendants. 

 Case No. 3:17-cv-00850-WHA 

DEFENDANTS' MOTION TO DISMISS 

CLASS ACTION COMPLAINT 

PURSUANT TO FRCP 12(b)(6) 

Judge: Hon. The Honorable William Alsup 

Date: June 22, 2017 

Time: 8 a.m. 

Crtrm.: 8, 19th Floor 

Trial Date: None Set 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 1 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

NOTICE OF MOTION AND MOTION 

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 

PLEASE TAKE NOTICE that on June 22, 2017 at 8 a.m., or as soon thereafter as the 

matter may be heard, in Courtroom 8 of the San Francisco Courthouse for the Northern District of 

California, located at 450 Golden Gate Avenue, San Francisco, CA 94102, Defendants Uber 

Technologies, Inc. and Rasier, LLC will, and hereby do, move the Court for an Order dismissing 

Plaintiff Martin Dulberg's Class Action Complaint pursuant to Rule 12(b)(6) of the Federal Rules 

of Civil Procedure. This motion is made pursuant to Federal Rules of Civil Procedure Rule 12, and 

is based upon the accompanying Memorandum of Points and Authorities, and all the pleadings, 

records, and files in this action. 

DATED: April 24, 2017 COBLENTZ PATCH DUFFY & BASS LLP 

By: /s/ Jonathan R. Bass 

Jonathan R. Bass 

Susan K. Jamison 

Clifford E. Yin 

Skye D. Langs 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC., and RASIER, 

LLC 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 2 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 i 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

TABLE OF CONTENTS 

Page 

INTRODUCTION ............................................................................................................................. 1

ISSUES TO BE DECIDED ............................................................................................................... 2

FACTS ALLEGED IN THE COMPLAINT ..................................................................................... 2

I. THE FARE EARNED BY A DRIVER IS BASED ON THE COMPLETED 

TRIP, NOT THE TOTAL AMOUNT PAID BY THE RIDER. ............................... 2

A. The TS Agreement Governs The Payment Owed To A Driver. ................... 2

B. "Fare" Is A Specially-Defined Term. ............................................................ 2

C. Drivers May Not Charge Amounts Exceeding The Calculated 

"Fare." ............................................................................................................ 2

D. The TS Agreement Equates The "Fare" With The Charges A Rider 

Actually Incurs Only When A Rider Cancels A Trip. .................................. 3

E. The "Default" Fare Is Not The Amount That The Rider Pays. ..................... 4

F. The Service Fee Addendum Provides No Support For Plaintiff's 

Definition Of "Fare." ..................................................................................... 5

ARGUMENT .................................................................................................................................... 5

I. DISMISSAL UNDER RULE 12(b)(6) IS PROPER WHEN THE 

COMPLAINT FAILS TO PRESENT A COGNIZABLE LEGAL THEORY 

OR FACTS SUFFICIENT TO STATE A CLAIM. .................................................. 5

II. THE COMPLAINT FAILS TO STATE A CLAIM FOR BREACH OF 

CONTRACT. ............................................................................................................ 6

A. The Construction of the Transportation Services Agreement is 

Governed by California Law, Which Requires Adherence to the 

Plain Language. ............................................................................................. 7

B. Uber Never Promised to Remit to Drivers a Percentage of What 

Riders Pay. .................................................................................................... 7

C. Plaintiff's Interpretation of Uber's Duties Is Contrary to the Text of 

the Agreement. .............................................................................................. 8

D. Plaintiff's Interpretation of the Term "Fare" Is Not the Definition in 

the Contract. .................................................................................................. 8

III. PLAINTIFF'S CLAIMS FOR BREACH OF THE COVENANT OF GOOD 

FAITH AND FAIR DEALING, PROMISSORY ESTOPPEL, AND 

UNJUST ENRICHMENT SHOULD ALSO BE DISMISSED. ............................... 9

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 3 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 ii 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

A. Plaintiff Has Not Stated a Claim for Breach of the Covenant of 

Good Faith and Fair Dealing. ........................................................................ 9

B. Plaintiff Cannot Assert a Promissory Estoppel Claim Based on an 

Enforceable Written Agreement. ................................................................. 10

C. Plaintiff Has No Claim for Unjust Enrichment. .......................................... 12

CONCLUSION ............................................................................................................................... 13

 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 4 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 iii 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Aguilar v. Int'l Longshoremen's Union Local No. 10, 

966 F.2d 443 (9th Cir. 1992) ......................................................................................................11 

Ashcroft v. Iqbal, 

556 U.S. 662 (2009) .................................................................................................................5, 6 

Baldwin v. AAA N. California, Nevada & Utah Ins. Exch., 

1 Cal.App.5th 545 (Ct. App. 2016) ..............................................................................................7 

Beachcrete, Inc. v. Water St. Ctr. Assocs., L.L.C., 

172 N.C.App. 156 (N.C. App. 2005) ...........................................................................................6 

Bell Atlantic Corp. v. Twombly, 

550 U.S. 544 (2007) .....................................................................................................................5 

Carma Developers (Cal.), Inc. v. Marathon Dev. California, Inc., 

2 Cal.4th 342 (Cal. 1992) .............................................................................................................9 

Clear Channel Outdoor, Inc. v. Bently Holdings California LP, 

No. C-11-2573 EMC, 2011 WL 6099394 (N.D. Cal. Dec. 7, 2011) .........................................13 

Darnaa, LLC v. Google Inc., 

No. C 15-03221 WHA, 2017 WL 679404 (N.D. Cal. Feb. 21, 2017) .....................................8, 9

Durell v. Sharp Healthcare, 

183 Cal.App.4th 1350 (Cal. App. 2010) ........................................................................10, 12, 13 

FiTeq Inc. v. Venture Corp., 

169 F.Supp.3d 948 (N.D. Cal. 2016) ...........................................................................................7 

Grebow v. Mercury Ins. Co., 

241 Cal.App.4th 564 (Cal. App. 2015) ....................................................................................7, 9 

Gross v. Symantec Corp., 

No. C 12-00154 CRB, 2012 WL 3116158 (N.D. Cal. July 31, 2012) .......................................10 

Guz v. Bechtel Nat'l Inc., 

24 Cal.4th 317 (Cal. 2000) ...........................................................................................................9 

Herskowitz v. Apple Inc., 

940 F.Supp.2d 1131 (N.D. Cal. 2013) .........................................................................................6 

Hinds Inv., L.P. v. Angioli, 

654 F.3d 846 (9th Cir. 2011) ........................................................................................................5 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 5 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 iv 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

Home Elec. Co. of Lenoir v. Hall & Underdown Heating & Air Conditioning Co., 

86 N.C.App. 540 (N.C. App. 1987) ...........................................................................................12 

J.B. Enterprises Int'l, L.L.C. v. Sid & Marty Krofft Pictures Corp., 

No. CV 02-7779 CBM (SHX), 2003 WL 21037837 (C.D. Cal. Mar. 3, 2003) .........................11 

JMP Sec. LLP v. Altair Nanotechnologies Inc., 

880 F.Supp.2d 1029 (N.D. Cal. 2012) .......................................................................................11 

Johnson v. Fed. Home Loan Mortg. Corp., 

793 F.3d 1005 (9th Cir. 2015) ..................................................................................................6, 7 

Laks v. Coast Fed. Sav. & Loan Assn., 

60 Cal.App. 3d 885 (Cal. App. 1976) ........................................................................................11 

Lane v. Scarborough, 

284 N.C. 407 (N.C. 1973) ..........................................................................................................10 

Lewis v. YouTube, LLC, 

224 Cal.App.4th 118 (Cal. App. 2015) ....................................................................................7, 8 

Marder v. Lopez, 

450 F.3d 445 (9th Cir. 2006) ........................................................................................................7 

Paracor Fin., Inc. v. GE Capital Corp., 

96 F.3d 1151 (9th Cir. 1996) ......................................................................................................12 

Parrish v. Nat'l Football League Players Ass'n, 

534 F.Supp.2d 1081 (N.D. Cal. 2007) .........................................................................................6 

Plasman v. Decca Furniture (USA), Inc., 

No. 12 CVS 2832, 2016 WL 6208639 (N.C. Super. Oct. 21, 2016) ............................................6 

Robinson v. HSBC Bank USA, 

732 F.Supp.2d 976 (N.D. Cal. 2010) .........................................................................................12 

Rongotes v. Pridemore, 

88 N.C.App. 363 (N.C. App. 1988) ...........................................................................................13 

Rosen v. State Farm Gen. Ins. Co., 

30 Cal.4th 1070 (Cal. 2003) .....................................................................................................7, 9 

S. California Counseling Ctr. v. Great Am. Ins. Co., 

162 F.Supp.3d 1045 (C.D. Cal. 2014) ..........................................................................................7 

Solano v. Am.'s Servicing Co., 

No. 2:10-cv-02426-GEB-GGH, 2011 WL 4500874 (E.D. Cal. Sept. 27, 2011) .......................13

Stanford Univ. Hosp. v. Fed. Ins. Co., 

174 F.3d 1077 (9th Cir. 1999) ......................................................................................................8 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 6 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 v 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

Suntrust Bank v. Bryant/Sutphin Props., LLC, 

222 N.C.App. 821 (N.C. App. 2012) .........................................................................................10 

TRB Inv., Inc. v. Fireman's Fund Ins. Co., 

40 Cal.4th 19 (Cal. 2006) .............................................................................................................7 

Tritz v. U.S. Postal Serv., 

721 F.3d 1133 (9th Cir. 2013) ......................................................................................................6 

US Ecology, Inc. v. State, 

129 Cal.App.4th 887 (Cal. App. 2005) ......................................................................................11 

Vetco Concrete Co. v. Troy Lumber Co., 

256 N.C. 709 (N.C. 1962) ..........................................................................................................13 

Walker v. KFC Corp., 

728 F.2d 1215 (9th Cir. 1984) ....................................................................................................11 

Wright v. Oregon Metallurgical Corp., 

360 F.3d 1090 (9th Cir. 2004) ......................................................................................................6 

Zepeda v. PayPal, Inc., 

777 F.Supp.2d 1215 (N.D. Cal. 2011) .........................................................................6, 7, 10, 12 

Statutes & Rules 

Cal. Civ. Code § 1636 ........................................................................................................................7 

Cal. Civ. Code § 1638 ........................................................................................................................7 

Cal. Civ. Code § 1639 ........................................................................................................................7 

Cal. Civ. Code § 1644 ....................................................................................................................7, 9 

Rule 12(b)(6) ......................................................................................................................................5 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 7 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 1 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

INTRODUCTION 

Plaintiff Martin Dulberg alleges that Uber Technologies, Inc. and its subsidiary Rasier, 

LLC (collectively, "Uber") breached the contract entered into with him (and other drivers with 

Uber), and that the breach unfairly deprived him of some portion of the fare that he was entitled to 

receive on certain trips. He is wrong, on both counts. The conduct he alleges cannot be a breach of 

his contract with Uber, because it honors the express terms of that agreement. The gist of 

Plaintiff's Complaint is that he is receiving his agreed-upon percentage of the fare based on the 

time and distance that he actually drives each rider. That is precisely the arrangement he accepted 

when he signed up to drive with Uber, and there is nothing unfair about it. The contract is attached 

to the Complaint, and there can be no dispute regarding its terms. Those terms do not support the 

claims set forth in the Complaint, which should therefore be dismissed. 

The Uber software application ("Uber App") enables independent drivers ("Drivers") to 

receive transportation requests from riders. Plaintiff alleges that Uber promised Drivers that their 

payments would be based on the actual charges to riders. (Compl. ¶¶ 2-3, 19-20, 21-24.) Not so. 

Under the Technology Services Agreement ("TS Agreement") attached to the Complaint, the only 

payment to which a Driver is entitled for a completed trip is the "Fare" produced by the "Fare 

Calculation," consisting of a base amount plus distance and/or time rates. (TS Agreement, Exh. 1 

to Compl. ¶ 4.1.; Service Fee Addendum ("Addendum"), Exh. 2 to Compl.) Uber never agreed 

that the "Fare" payable to a Driver would be equal to (or no lower than) the rider "charge." Nor is 

"Fare" defined as the sum of rider charges. In other words, under the Agreement, and as alleged by 

Plaintiff, the Fare a Driver earns is based on the actual length of the journey, not any 

predetermined price a rider agrees to pay before the ride begins. 

Words in a contract mean something. In this case, they mean that the allegations of the 

Complaint fail to state a claim. Uber promised that Plaintiff would be paid according to a certain 

Fare Calculation, and Plaintiff acknowledges that he was. Each claim alleged in the Complaint is 

premised on mischaracterizations of Uber's contractual obligations, is irreconcilable with the 

express language of that Agreement, or is otherwise facially meritless as a matter of law. Because 

that contract is before the Court, because its plain language is contrary to Plaintiff's theory of 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 8 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 2 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

breach, and because no amendment can cure this defect, the Complaint should be dismissed with 

prejudice. 

ISSUES TO BE DECIDED 

Should the Complaint be dismissed for failure to state a claim where the allegations of 

breach of contract are contradicted by the language of the contract itself? 

FACTS ALLEGED IN THE COMPLAINT 

I. THE FARE EARNED BY A DRIVER IS BASED ON THE COMPLETED TRIP, 

NOT THE TOTAL AMOUNT PAID BY THE RIDER. 

A. The TS Agreement Governs The Payment Owed To A Driver. 

Plaintiff Martin Dulberg is a Driver in Raleigh, North Carolina. (Compl. ¶¶ 4.) His 

relationship with Uber is governed by the TS Agreement. (Id. at ¶ 9.) 

B. "Fare" Is A Specially-Defined Term. 

The TS Agreement provides that Drivers will receive a calculated amount "for each 

instance of completed Transportation services" provided to a rider via the Uber App. (TS 

Agreement ¶ 4.1.) That monetary amount for each completed trip is produced by the "Fare 

Calculation." The calculation reflects a base fare amount, plus distance, and/or time amounts set 

forth on Uber's website at www.uber.com/cities. (Id.) The amount generated by the Fare 

Calculation is the "Fare." (Id.) The TS Agreement states that "the Fare provided under the Fare 

Calculation is the only payment you [i.e., the driver] will receive in connection with the 

Transportation Services." (Id.) 

Drivers pay a percentage of the Fare to Uber. (Compl. ¶ 17, quoting paragraph 4.4 of the 

TS Agreement.) The applicable percentage is the "Service Fee." (Compl. ¶¶ 17-18; TS Agreement 

¶ 4.4.) Plaintiff alleges that, once the applicable Service Fee is subtracted, he was entitled to 

"retain 80% of the Fare . . . for UberX rides and 72% of the Fare for . . . UberSelect rides." 

(Compl. ¶ 18.) 

C. Drivers May Not Charge Amounts Exceeding The Calculated "Fare." 

Drivers have no contractual right to receive any amounts over and above the Fare produced 

by the Fare Calculation. The TS Agreement makes this clear in two ways. First, paragraph 4.1 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 9 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 3 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

contains the following acknowledgment: 

You acknowledge and agree that the Fare provided under the Fare 

Calculation is the only payment you will receive in connection with 

the provision of Transportation Services, and that neither the Fare 

nor the Fare Calculation includes any gratuity. 

(TS Agreement ¶ 4.1 (emphasis added).) 

Second, paragraph 4.7, titled "No Additional Amounts," provides that Uber may engage 

in promotional activity "for the mutual benefit of the parties" seeking "to attract new Users to 

Uber and to increase existing Users' 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." (TS Agreement ¶ 4.7.) 

D. The TS Agreement Equates The "Fare" With The Charges A Rider Actually 

Incurs Only When A Rider Cancels A Trip. 

Plaintiff alleges that the Agreement defines fare or Fare to be "what the customer is 

actually charged for the ride" or "pays" for the ride. (See, e.g., Compl. ¶ 2; see also ¶ 19 ("Under 

the Agreement and Addendum, the driver is entitled to a percentage of the Fare (the fee that the 

customer pays)"); ¶ 51 (alleging that Uber made representations in its Agreement and Addendum 

that it would remit payments based on "a percentage of the Fare charged to passengers").) 

According to Plaintiff, the Fare cannot be based on Uber's "backend calculation." (Compl, ¶¶ 22, 

24.) 

No language in the TS Agreement (or the Addendum) equates the Driver "Fare" with any 

amount that Uber might "charge" riders, nor does plaintiff identify any promise by Uber that it 

would cease using its "backend" Fare Calculation to determine the Fare in the event it changed the 

methodology for rider charges. In fact, there is only one place in which the TS Agreement links 

the remittance owed to a Driver with a "charge" to a rider. In paragraph 4.5 ("Cancellation 

Charges"), (a) the Driver acknowledges that riders may cancel ride requests, and that Uber "may" 

charge a cancellation fee on the Driver's behalf when that occurs, and (b) the parties agree that 

such a fee, "(i)f charged," will be "deemed the Fare for the cancelled Transportation Services for 

the purpose of remittance to you hereunder." (TS Agreement ¶ 4.5 (emphasis added).) 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 10 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 4 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

E. The "Default" Fare Is Not The Amount That The Rider Pays. 

The sole basis for Plaintiff's conclusory assertions that the Fare earned by Drivers is the 

amount "charged" to riders is language in the Agreement that describes the Fare as a "default" 

amount. (See Compl. ¶ 16; quoting TS Agreement ¶ 4.1.) The Complaint states that the 

Agreement's reference in paragraph 4.1 to the Fare as a "default" amount means that "the Fare" (as 

the Agreement uses that term) must equal "the amount that Uber charges customers." (Compl. 

¶ 16.) But the contract says no such thing. It indicates that the Fare is a default amount that will 

govern in the absence of a decision by the driver to charge a rider a lower price for the rider's 

transportation, or to negotiate a lower "Fare" with Uber (which it thereafter denominates a 

"Negotiated Fare").1

 (See TS Agreement ¶ 4.1.) 

A Driver's ability to reduce the amount charged to riders, or to negotiate a lower "Fare" 

provides no basis for the conclusory assertion that drivers are entitled to receive a portion of 

amounts that exceed the "Fare" (as calculated by the Fare Calculation) if riders are charged such 

amounts. (TS Agreement ¶ 4.1.) Paragraph 4.1 does not address the situation in which a rider's 

charge exceeds the "Fare" (as the parties use that term). 

The quoted "default" language, moreover, describes the "pre-arranged Fare" as the amount 

that will ordinarily serve as the default amount as between the driver and Uber. (Id.) Again, it says 

nothing about the rider's payments to Uber, and it nowhere indicates that any "fixed" or 

"guaranteed" prices quoted by Uber to riders will serve as "the Fare" used to determine payments 

 

1

 This is clear when the "default" language Plaintiff uses to support his allegations is read in 

context. Here is what the pertinent sentences actually say: 

[T]he parties acknowledge and agree that as between you and 

Company, the Fare is a recommended amount, and the primary

purpose of the pre-arranged Fare is to act as the default amount in 

the event you do not negotiate a different amount. You shall 

always have the right to: (i) charge a fare that is less than the prearranged Fare; or (ii) negotiate, at your request, a Fare that is lower 

than the prearranged Fare (each of (i) and (ii) herein, a "Negotiated 

Fare"). 

(See TS Agreement ¶ 4.1 (emphasis added).) 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 11 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 5 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

to drivers.

2

 

F. The Service Fee Addendum Provides No Support For Plaintiff's Definition Of 

"Fare." 

The Service Fee Addendum (Exhibit 2 to the Complaint) likewise provides no support for 

Plaintiff's claim that he is entitled to a percentage of the charge that a rider pays. That Addendum 

"sets forth additional terms and conditions," but nowhere suggests that Driver payments will be 

based on the total charges assessed to riders. 

ARGUMENT 

I. DISMISSAL UNDER RULE 12(b)(6) IS PROPER WHEN THE COMPLAINT 

FAILS TO PRESENT A COGNIZABLE LEGAL THEORY OR FACTS

SUFFICIENT TO STATE A CLAIM. 

Dismissal of a complaint pursuant to Rule 12(b)(6) "is proper where there is either a lack 

of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal 

claim." Hinds Inv., L.P. v. Angioli, 654 F.3d 846, 850 (9th Cir. 2011). "While a complaint attacked 

by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's 

obligation to provide the grounds of his entitlement to relief requires more than labels and 

conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations and punctuation omitted). 

Conclusory allegations are not assumed to be true and they should be disregarded. Ashcroft v. 

Iqbal, 556 U.S. 662, 681 (2009). 

To survive a motion to dismiss, the factual, non-conclusory allegations in the complaint 

must be sufficient to state a claim for relief that is "plausible" on its face. Iqbal, 556 U.S. at 681. A 

plausible claim requires "factual content that allows the court to draw the reasonable inference that 

 

2

 The TS Agreement also makes clear that the driver's discretion to accept less than the amount 

that he would otherwise receive under the Fare Calculation does not displace the Fare produced by 

that calculation for all purposes. Notwithstanding any decision by the driver to negotiate a lower 

Fare (and thereby reduce his or her remittance), the Service Fee due to Uber continues to be the 

applicable percentage of the "Fare determined by the Fare Calculation (regardless of any 

Negotiated Fare)." (TS Agreement ¶ 4.4 (emphasis added).) 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 12 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 6 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

the defendant is liable for the misconduct alleged." Id. at 678. 

Breach of contract allegations are implausible when they are unsupported by the terms of 

the agreement upon which they rest. Johnson v. Fed. Home Loan Mortg. Corp., 793 F.3d 1005, 

1008 (9th Cir. 2015). A court is "not required to accept as true conclusory allegations which are 

contradicted by documents referred to in the complaint." Wright v. Oregon Metallurgical Corp., 

360 F.3d 1090, 1096 (9th Cir. 2004). Claims must be dismissed when plaintiff's allegations are 

either contradicted or unsupported by the express terms of the contracts or other documents 

referred to in the complaint. Id. at 1100; Johnson, 793 F.3d at 1006; Tritz v. U.S. Postal Serv., 721 

F.3d 1133, 1140 (9th Cir. 2013); Zepeda v. PayPal, Inc., 777 F.Supp.2d 1215, 1219-20 (N.D. Cal. 

2011); Parrish v. Nat'l Football League Players Ass'n, 534 F.Supp.2d 1081, 1097 (N.D. Cal. 

2007). 

II. THE COMPLAINT FAILS TO STATE A CLAIM FOR BREACH OF CONTRACT. 

Plaintiff's claim of breach rests upon an implausible and untenable interpretation of the 

parties' written agreement. As such, his claim is facially meritless. Herskowitz v. Apple Inc., 940 

F.Supp.2d 1131, 1141 (N.D. Cal. 2013); Zepeda, 777 F.Supp.2d at 1219-20.3

Plaintiff's allegation – that he is entitled to a percentage of "the fee that the customer pays," 

rather than a percentage of the Fare produced by the Fare Calculation after the transportation 

services have been provided (see Compl. ¶¶ 19-20) – fails to state a claim for breach of contract 

because the text of the contract is irreconcilable with that claim. Plaintiff does not identify any 

promise by Uber to base his payments on the charges imposed on riders, or to share any such 

charges with Drivers. Rather, the Agreement provides that Uber will remit to the Driver a 

percentage of the Fare produced by the Fare Calculation. 

 

3

 Should Plaintiff assert that North Carolina, rather than California, law applies, the outcome 

would be the same. Beachcrete, Inc. v. Water St. Ctr. Assocs., L.L.C., 172 N.C.App. 156, 159-160 

(N.C. App. 2005) (affirming dismissal of plaintiff's claim for breach of surety bond, where terms 

of bond require claims to be brought within a year of cessation of work, and plaintiff failed to do 

so); Plasman v. Decca Furniture (USA), Inc., No. 12 CVS 2832, 2016 WL 6208639, at *5 (N.C. 

Super. Oct. 21, 2016) (dismissing breach of contract claims "defeated by the actual terms" of the 

agreements at issue). 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 13 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 7 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

A. The Construction of the Transportation Services Agreement is Governed by 

California Law, Which Requires Adherence to the Plain Language. 

The interpretation of the TS Agreement is governed by California law. (TS Agreement 

¶ 15.1.) The interpretation of a contract is a matter of law for the court to decide. FiTeq Inc. v. 

Venture Corp., 169 F.Supp.3d 948, 955 (N.D. Cal. 2016). 

The Court's interpretation must "give effect to the mutual intention of the parties," as it 

existed at the time the contract was formed. Cal. Civ. Code § 1636; TRB Inv., Inc. v. Fireman's 

Fund Ins. Co., 40 Cal.4th 19, 27 (Cal. 2006). When a contract is written, "the intention of the 

parties is to be ascertained from the writing alone, if possible." Cal. Civ. Code § 1639. 

"The language of a contract is to govern its interpretation, if the language is clear and 

explicit, and does not involve an absurdity." Cal. Civ. Code § 1638; Marder v. Lopez, 450 F.3d 

445, 449 (9th Cir. 2006); Lewis v. YouTube, LLC, 224 Cal.App.4th 118, 125 (Cal. App. 2015). 

Any special meaning given to a term by the parties prevails over its ordinary or popular 

meaning. Cal. Civ. Code § 1644. Courts are not in the business of disregarding the actual language 

parties use in their contract, including the definitions the parties have assigned to specific terms. 

See Rosen v. State Farm Gen. Ins. Co., 30 Cal.4th 1070, 1073 (Cal. 2003); Grebow v. Mercury 

Ins. Co., 241 Cal.App.4th 564, 573 (Cal. App. 2015), as modified on denial of reh'g (Oct. 26, 

2015). 

Just as courts do not disregard the parties' intent to use a term in a special, defined way, 

they do not re-write a clear and unambiguous agreement by adding a special definition, or any 

other term, that the agreement itself does not supply. Rosen, 30 Cal.4th at 1073; Baldwin v. AAA 

N. California, Nevada & Utah Ins. Exch., 1 Cal.App.5th 545, 555 (Ct. App. 2016), as modified 

(July 13, 2016); see also S. California Counseling Ctr. v. Great Am. Ins. Co., 162 F.Supp.3d 1045, 

1052-53 (C.D. Cal. 2014). 

B. Uber Never Promised to Remit to Drivers a Percentage of What Riders Pay. 

Because each of Plaintiff's claims is predicated on an interpretation of the TS Agreement 

that the text does not support, the Complaint should be dismissed. Johnson, 793 F.3d at 1006; 

Zepeda, 777 F.Supp.2d at 1219-20. 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 14 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 8 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

While Plaintiff alleges that Uber promised to base remittances to Drivers on the amount 

charged to riders, the Agreement itself provides no factual basis for this claim. The TS Agreement 

does not entitle Drivers to a percentage of the total amount riders are charged. To the contrary, it 

expressly provides that the driver's "Fare is calculated based upon a base fare amount plus distance 

. . . and/or time amounts, as detailed at www.uber.com/cities for the applicable Territory ('Fare 

Calculation')." (TS Agreement, ¶ 4.1.) 

Nor does the Agreement tie a driver's remittance to the amount of the rider's payment. 

Plaintiff asserts that the "Fare" earned by the Driver, and the fee paid by the rider, are one and the

same thing. (See, e.g., Compl. ¶ 19.) But these conclusions, untethered to – indeed, contrary to – 

the language of the TS Agreement, cannot support Plaintiff's claims.

C. Plaintiff's Interpretation of Uber's Duties Is Contrary to the Text of the 

Agreement. 

The contention that Drivers are entitled to an amount greater than the Fare Calculation is 

further refuted by the terms of the TS Agreement. Plaintiff agreed that his remittance would be 

based solely on the Fare Calculation. (TS Agreement. ¶ 4.1 ("You acknowledge and agree that the 

Fare provided under the Fare Calculation is the only payment you will receive in connection with 

the provision of Transportation Services.") Drivers expressly disclaim a right to any "additional 

monetary amounts" generated by Uber's promotional activities. (TS Agreement ¶ 4.7.) These 

acknowledgements foreclose any claim that Uber is contractually obligated to pay drivers an 

amount greater than the Fare Calculation. See Stanford Univ. Hosp. v. Fed. Ins. Co., 174 F.3d 

1077, 1086-87 (9th Cir. 1999); Darnaa, LLC v. Google Inc., No. C 15-03221 WHA, 2017 WL 

679404, at *8 (N.D. Cal. Feb. 21, 2017); Lewis, 244 Cal.App.4th at 126. 

D. Plaintiff's Interpretation of the Term "Fare" Is Not the Definition in the 

Contract. 

The TS Agreement defines Fare as the amount "you [the driver] are entitled to charge . . . 

for each instance of completed Transportation Services provided to a User that are obtained via the 

Uber Services ("Fare"), where such Fare is calculated based upon the base fare amount plus 

distance . . . and/or time." (TS Agreement ¶ 4.1.) 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 15 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 9 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

Ignoring the language of the TS Agreement, Plaintiff asserts that "[t]he Fare . . . is the 

amount that Uber charges passengers" (Compl. ¶ 16), and that "[t]here is one Fare. Passengers pay 

it and drivers are supposed to be compensated based on it." (Compl. ¶ 41.) But that 

characterization has no legal weight. The words of the contract itself control, as against a 

complaint's characterization of it. See Cal. Civ. Code § 1644; Grebow, 241 Cal.App.4th at 571, as 

modified on denial of reh'g (Oct. 26, 2015); see also Rosen, 30 Cal.4th at 1073. The "Fare," as 

defined in the TS Agreement, is not the amount that riders are "charged." The "Fare" is the product 

of the time/distance/base amount calculation set forth in Uber's website (TS Agreement ¶ 4.1), 

unless a rider cancels a requested trip. (TS Agreement ¶ 4.5.) 

III. PLAINTIFF'S CLAIMS FOR BREACH OF THE COVENANT OF GOOD FAITH 

AND FAIR DEALING, PROMISSORY ESTOPPEL, AND UNJUST ENRICHMENT 

SHOULD ALSO BE DISMISSED. 

A. Plaintiff Has Not Stated a Claim for Breach of the Covenant of Good Faith 

and Fair Dealing. 

The second claim, for breach of the implied covenant of good faith and fair dealing, must 

also be dismissed for failure to state a claim. The core allegation supporting this claim – that by 

"charging a greater Fare to riders than the calculation used to determine payment to drivers," Uber 

denies drivers the "full benefits they are entitled to under the parties' agreement" (Compl. ¶ 47) – 

provides no support for a claim for breach of the implied covenant of good faith and fair dealing. 

The covenant of good faith and fair dealing protects a party's contractual expectations, and 

"prevent[s] one contracting party from unfairly frustrating the other party's right to receive the 

benefits of the agreement actually made." Guz v. Bechtel Nat'l Inc., 24 Cal.4th 317, 349 (Cal. 

2000) (emphasis in original). But the implied covenant cannot be invoked for the purpose of 

changing the substance of the contract or any of its specific terms. Id. at 350. A "good faith and 

fair dealing" claim cannot lie where the contract expressly permits the conduct complained of, or 

precludes liability for that conduct. Carma Developers (Cal.), Inc. v. Marathon Dev. California, 

Inc., 2 Cal.4th 342, 374 (Cal. 1992); Darnaa, LLC, 2017 WL 679404, at *8. 

Plaintiff does not claim that Uber remitted amounts to him that were less than the "Fare" 

produced by the "backend calculation." He is claiming instead that Uber breached the implied 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 16 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 10 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

covenant by failing to remit amounts over and above the amounts produced by that calculation 

when riders are charged such higher amounts. But Uber never agreed to base the "Fare" payable to 

Drivers on the amounts riders pay (or are charged) for completed rides, and Drivers expressly 

acknowledge that they will receive the Fare produced by the Fare Calculation (and no additional 

amounts). (See TS Agreement ¶¶ 4.1, 4.7.) 

There is an additional reason why the good faith and fair dealing claim should be 

dismissed: it is entirely derivative of the breach of contract claim. The good faith and fair dealing 

claim rests on no additional facts, no promises or representations outside of the TS Agreement, 

and no claims for breach that differ from those asserted in the breach of contract claim. (See 

Compl. ¶¶ 44-48.) A good faith and fair dealing claim that merely parrots an express breach of 

contract claim should be dismissed. Durell v. Sharp Healthcare, 183 Cal.App.4th 1350, 1369 (Cal. 

App. 2010); Zepeda, 777 F.Supp.2d at 1221; Gross v. Symantec Corp., No. C 12-00154 CRB, 

2012 WL 3116158, at *13 (N.D. Cal. July 31, 2012)4

 

B. Plaintiff Cannot Assert a Promissory Estoppel Claim Based on an Enforceable 

Written Agreement. 

The third claim for relief, for promissory estoppel, alleges that Plaintiff relied to his 

detriment on the "clear and unambiguous" promise (allegedly made in the Agreement) to remit to 

Drivers a percentage of the amount paid by riders. (Compl. ¶¶ 51-53.) These allegations fail to 

state a promissory estoppel claim.5 

 

4

 If this cause of action were evaluated under North Carolina law, the result would be the same. 

North Carolina does not regard the implied covenant as separate from the obligations of the 

contract; claims for its breach rise and fall with the claim for breach of contract; and North 

Carolina does not countenance implying a term in an agreement that cannot be squared with the 

agreement itself. Suntrust Bank v. Bryant/Sutphin Props., LLC, 222 N.C.App. 821, 833 (N.C. App. 

2012) (declining to grant judgment in favor of plaintiff on claim for breach of the covenant of 

good faith and fair dealing where jury found no breach of the express contract, concluding that "it 

would be illogical for this Court to conclude that plaintiff somehow breached implied terms of the 

same contracts"); Lane v. Scarborough, 284 N.C. 407, 411 (N.C. 1973) (declining to imply terms 

into a contract that are "inconsistent with the expressed provisions"). 

5

 Under California law, promissory estoppel requires (1) a clear and unambiguous promise, (2) 

reliance on that promise, (3) the reliance is reasonable and foreseeable, and (4) injury results from 

(footnote continued) 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 17 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 11 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

First, Plaintiff fails to identify any "clear and unambiguous" promise to base Drivers' 

remittances on amounts paid by the rider. The only provision in the Agreement entitling a Driver 

to a remittance based on a charge to a rider concerns a cancellation fee, as previously explained. 

(TS Agreement ¶ 4.5.) In all other cases, the driver's remittance is limited to the Fare produced by 

the Fare Calculation. (TS Agreement ¶ 4.1.) Because Plaintiff has not plausibly alleged the first 

element of a promissory estoppel claim – a "clear and unambiguous promise" – this claim fails as 

a matter of law. Laks v. Coast Fed. Sav. & Loan Assn., 60 Cal.App. 3d 885, 893 (Cal. App. 1976) 

(affirming dismissal of promissory estoppel claim without leave to amend where conditional loan 

commitment did not contain a "clear and unambiguous" promise to loan a specified amount of 

money); see also Aguilar v. Int'l Longshoremen's Union Local No. 10, 966 F.2d 443, 446 (9th Cir. 

1992). 

Second, a promissory estoppel claim does not lie when the parties' obligations are 

expressed in an enforceable written contract creating mutual obligations. Walker v. KFC Corp., 

728 F.2d 1215, 1220 (9th Cir. 1984); JMP Sec. LLP v. Altair Nanotechnologies Inc., 880 

F.Supp.2d 1029, 1041-42 (N.D. Cal. 2012). Here, the claim for promissory estoppel rests entirely 

on promises supposedly made in the Agreement. As there is no allegation that the Agreement is 

invalid, or that Uber promised to do something beyond what is stated in the agreement, the claim 

must be dismissed. See Walker, 728 F.2d at 1220; JMP Sec. LLP, 880 F.Supp.2d at 1041-42. 

Third, a promissory estoppel claim does not give a party a "second bite at the apple" if his 

breach of contract claim fails. Walker, 728 F.2d at 1220; J.B. Enterprises Int'l, L.L.C. v. Sid & 

Marty Krofft Pictures Corp., No. CV 02-7779 CBM (SHX), 2003 WL 21037837, *4 (C.D. Cal. 

Mar. 3, 2003). Because Plaintiff's claim for breach of contract is irreconcilable with the written 

agreement itself, his promissory estoppel claim (which is based entirely on promises supposedly 

made within the four corners of that agreement), fails as well.6

 

the reliance. US Ecology, Inc. v. State, 129 Cal.App.4th 887, 901 (Cal. App. 2005) 

6

 Plaintiff's claim would also be dismissed under North Carolina law, albeit for different reasons. 

(footnote continued) 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 18 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 12 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

C. Plaintiff Has No Claim for Unjust Enrichment. 

In his final claim for relief, Plaintiff alleges that Uber has been unjustly enriched by 

"retain[ing] a larger portion of the passenger Fare than they promised" under the terms of the 

Agreement. (Compl. ¶ 61.) This claim fails for the reasons his other claims fail (and more). 

First, California does not recognize a stand-alone cause of action for unjust enrichment. 

Durell, 183 Cal.App.4th at 1370. The claim may be dismissed for this reason alone, without 

further consideration of its merits. Robinson v. HSBC Bank USA, 732 F.Supp.2d 976, 987 (N.D. 

Cal. 2010). 

Second, even if this claim is regarded as an attempt to seek restitution, it fails, as this 

claim, like Plaintiff's other claims, is premised on the TS Agreement (Compl. ¶¶ 61), which 

provides no support for Plaintiff's contention that Uber is unjustly retaining money in violation of 

its promises. The claim that Uber is "unjustly" retaining the amount of the alleged "discrepancy" 

between riders' actual "charges" and the amount produced by Uber's "backend calculation" is 

entirely unsupported. Under Plaintiff's own allegations, Uber is fulfilling its bargain with Drivers 

by basing their remittances on the Fare Calculation. Durell, 183 Cal.App.4th at 1371 ("There is no 

equitable reason for invoking restitution when the plaintiff gets the exchange which he 

expected."). 

Third, Plaintiff does not allege facts showing the TS Agreement to be invalid or otherwise 

unenforceable. "As a matter of law, an unjust enrichment claim does not lie where the parties have 

an enforceable express contract." Durell, 183 Cal.App.4th at 1370; see also Paracor Fin., Inc. v. 

GE Capital Corp., 96 F.3d 1151, 1167 (9th Cir. 1996) (claim for restitution based on unjust 

enrichment does not lie under California law "when an enforceable, binding agreement exists 

defining rights of the parties"); Zepeda, 777 F.Supp.2d at 1223 ("[A] plaintiff may recover for 

unjust enrichment only where there is no contractual relationship between the parties."). 

 

The law of that state does not recognize promissory estoppel as a basis for affirmative relief at all.

Home Elec. Co. of Lenoir v. Hall & Underdown Heating & Air Conditioning Co., 86 N.C.App. 

540, 543 (N.C. App. 1987). 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 19 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 13 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

Plaintiff alleges that the parties' express contract governs their relationship (Compl. ¶¶ 1, 9, 

14-19, 36-40), and he incorporates those allegations into all of his claims for relief. (Id. ¶ 44, 49, 

58.) He pleads no facts that support an inference that the parties' contract "is unenforceable or 

ineffective for some reason." Clear Channel Outdoor, Inc. v. Bently Holdings California LP, No. 

C-11-2573 EMC, 2011 WL 6099394, at *9 (N.D. Cal. Dec. 7, 2011). Having failed to allege any 

facts "as to how the contract would be unenforceable," his claim for restitution based on unjust 

enrichment fails as a matter of law. Id.; see also Durell, 183 Cal.App. 4th at 1370; Solano v. Am.'s 

Servicing Co., No. 2:10-cv-02426-GEB-GGH, 2011 WL 4500874, at *9 (E.D. Cal. Sept. 27, 2011) 

(dismissing claim for unjust enrichment where "[n]one of Plaintiff's allegations plausibly suggest 

that valid contracts did not exist between the parties").7

CONCLUSION 

Plaintiff's claims rest on unsupported and implausible conclusions about the TS 

Agreement, how the parties used the term "Fare," and what Uber promised. Because the contract 

itself is before this Court, because its written terms provide no support for Plaintiff's contentions,

and because adopting Plaintiff's interpretation would alter the bargain that the parties actually 

made, Plaintiff's claims should be dismissed without leave to replead. 

 

7

 Once again, the result under North Carolina law would be the same. Vetco Concrete Co. v. Troy 

Lumber Co., 256 N.C. 709, 715 (N.C. 1962) (finding the trial court erred by submitting case to the 

jury on a theory of unjust enrichment when an express contract governed the claims in the case); 

Rongotes v. Pridemore, 88 N.C.App. 363, 368 (N.C. App. 1988) (affirming denial of recovery for 

alleged unjust enrichment where doing so would "operate to alter the terms of an enforceable 

contract"). 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 20 of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

10144.004 3695251v4 14 3:17-cv-00850-WHA

DEFENDANTS' MOTION TO DISMISS CLASS ACTION COMPLAINT PURSUANT TO FRCP 12(b)(6) 

COB LENT Z 

PA TCH 

DUFFY 

&

BASS LLP

O n e M o n t g o me r y S t r e e t , S u i te 300 0 , Sa n F r a n c i s c o , Ca l i f o r n i a 94 1 04 -5 500 

4 15 . 39 1 .4800 • Fa x 4 1 5 .9 89 . 1663 

DATED: April 24, 2017 COBLENTZ PATCH DUFFY & BASS LLP 

By: /s/ Jonathan R. Bass

Jonathan R. Bass 

Susan K. Jamison 

Clifford E. Yin 

Skye D. Langs 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC., and RASIER, 

LLC 

Case 3:17-cv-00850-WHA Document 25 Filed 04/24/17 Page 21 of 21