Filed 8/30/24; Certified for Publication 9/20/24 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MACKENZIE YOUNG JAY 

KIM, 

Plaintiff and Appellant,

v.

UBER TECHNOLOGIES, INC., 

et al.,

Defendants and Respondents.

 B331247

 Los Angeles County

 Super. Ct. No. 20STCV25305

APPEAL from an order of the Superior Court of Los 

Angeles County. Cherol Nellon, Judge. Affirmed.

The Wallace Firm, Bradley S. Wallace; and Matthew J. 

Kita for Plaintiff and Appellant.

Perkins Coie, Steven Williamson, Julie L. Hussey and 

Gregory F. Miller for Defendants and Respondents.

_____________________________
2

SUMMARY

The plaintiff in this lawsuit seeks to hold Uber 

Technologies, Inc. and related companies vicariously liable for 

injuries he suffered when he was struck by an automobile driven 

by Ralph Wilson. Mr. Wilson had been driving for Uber for 

several hours that evening and had turned his Uber driver app to 

“offline”—meaning he was not available to receive requests for 

rides—about four minutes before the accident and more than a 

mile away from the location of the accident. Mr. Wilson testified 

that “I cut off my Uber” and “I went to McDonald’s, and then I 

went home, and then is the accident.” 

The Uber parties moved for summary judgment on the 

ground they had no duty to plaintiff because Mr. Wilson was 

acting in his own personal capacity, not as an Uber driver, at the 

time of the accident. Plaintiff presented evidence that Uber 

drivers can go from “offline” to “available” within 30 seconds and

are able to see an Uber map showing areas of high demand for 

rides even when they are “offline”; and that Mr. Wilson’s 

recollection of what he was doing during the hours before the 

accident was contradictory and inconsistent with Uber’s records. 

Plaintiff argued those inconsistencies reflected adversely on 

Mr. Wilson’s credibility and there was a triable issue of fact as to 

whether he “was operating his vehicle with the intention of 

switching back to ‘available’ status at the time of his collision 

with Plaintiff.”

The trial court found plaintiff’s arguments speculative; that 

what Mr. Wilson was doing before the incident was irrelevant to 

establishing whether he was acting as an Uber driver at the time 

of the incident; and there was no evidence indicating he was not 

done driving for the night. The court therefore granted the Uber 

parties’ motion for summary judgment.

We affirm the judgment.
3

FACTS

1. Undisputed Facts: The Parties, the Uber App and 

the Accident

Plaintiff Mackenzie Young Jay Kim was a pedestrian in a 

traffic accident that occurred at about 2:28 a.m. on January 19, 

2020, on Santa Monica Boulevard near Bundy Drive. Ralph 

Davis Wilson III was the driver. Mr. Wilson is a defendant in 

this lawsuit but not a party to this appeal.

As is generally known, Uber uses technology (the Uber app) 

to connect riders with drivers who use their personal vehicles. 

The rider version of the Uber app and the driver version are 

different. Drivers are “available” to accept riders after they go 

“online” by logging into the Uber driver app. (All further 

discussion of the “Uber app” refers to the driver app.)

Uber uses data from the Uber app to determine whether a 

driver can accept and provide rides. Data from the Uber app 

shows the driver’s status in one of four categories: “available,” 

which means the driver can receive a ride request; “en route,” 

which means the driver is traveling to pick up a rider after a ride 

request was accepted; “on trip,” which means the driver is 

transporting a rider after pickup; and “offline,” which means the 

driver is not available to receive a ride request in the Uber app.

Data from the Uber app provides GPS coordinates 

indicating where the driver is located when the driver becomes 

“available” to receive trip requests, is “en route,” “on trip,” or goes 

“offline.” Uber’s records reflect every trip Mr. Wilson made on 

the night of the accident. The Uber app data “showed that 

Wilson was not logged ‘online’ to the [Uber app] at the time and 

location of the Subject Accident” (and Mr. Wilson admits he was 

not logged into the Uber app at the time of the accident, was not 

transporting anyone and was not on his way to pick up a 

rideshare rider at the time of the accident). 
4

Mr. Wilson last logged off in the Uber app at 2:24 a.m. on 

January 19, 2020, at specified GPS coordinates in West Los 

Angeles, and the accident occurred more than one mile from 

where Mr. Wilson’s status changed to “offline.”1 “Wilson testified 

that he was ‘done driving [for Uber] for the night’ when he struck 

Plaintiff.”2

An Uber representative testified that drivers “could have 

the app open on their phone and still be off-line related to 

accepting trip requests”; drivers could switch from “offline” to 

“available” by tapping a button on their screens, and could toggle 

back and forth within 30 seconds; and drivers are able to view a 

map showing “surge areas” while they are in offline status. 

(“Surge pricing” occurs in areas where many people are 

requesting rides at the same time (because of bad weather, rush 

hour, or special events) and there are not enough cars on the road 

to take them all.) 

2. Mr. Wilson’s Evidence

Mr. Wilson’s deposition testimony and interrogatory 

answers concerning where he drove and for how long on the night 

of January 18, 2020, before he went offline at 2:24 a.m. on 

1 Plaintiff admits Mr. Wilson’s status changed to “offline” 

more than a mile away from the collision, but disputes whether 

Mr. Wilson himself turned off the Uber app. Uber representative 

Todd Gaddis was asked at his deposition, “Are you able to 

determine, based on your review of these four rows of app status 

data for 2:24 a.m. . . . , whether the row was activated by the 

driver doing something within the app versus the app 

automatically doing something on its own?” and Mr. Gaddis 

answered, “No, I cannot.” But there is no evidence to suggest the 

Uber app “d[id] something on its own.”

2 Mr. Wilson remained offline until February 11, 2020. 
5

January 19, were inconsistent with each other and with Uber’s 

records. We describe this evidence because plaintiff relies on it to 

show there are fact issues for a jury to decide.

In verified answers to plaintiff’s special interrogatories on 

December 15, 2020, Mr. Wilson stated he was on his way home 

from picking up food at McDonald’s when the accident happened. 

He also stated he did not recall how many hours he had been 

driving before the accident. He stated he drove for Uber for 

about 30 to 40 minutes before the accident, turned the Uber app 

off and went home, and once he got home, he realized he was 

hungry and left his house a few minutes later to pick up 

McDonald’s. 

At his deposition on November 11, 2021, Mr. Wilson 

testified he left home sometime after midnight after being home 

all day, drove two short trips for Uber in West L.A., then cut off 

his app and went to the McDonald’s drive-through and bought 

food for himself, his daughter and her friend, around 2:00 a.m., 

and was on his way home from McDonald’s when the accident 

occurred. He said he was driving for Uber for “[p]robably close to 

two hours” before he went to McDonald’s. (Uber’s data show 

Mr. Wilson was driving for Uber for almost five hours before he 

went offline at 2:24 a.m.) 

Mr. Wilson also testified the McDonald’s was at 

11920 Wilshire Boulevard, five minutes away from where he 

dropped off his passenger, and that it was about 15 to 20 minutes 

from the drop-off of his last passenger to McDonald’s and then to 

the accident location. (Uber records together with Google Maps 

evidence from plaintiff show Mr. Wilson was in the vicinity of 

1747 Beloit Avenue in West Los Angeles when he went offline, a 

location 1.6 miles from the McDonald’s.)
6

3. The Arguments and the Trial Court’s Ruling

Uber argued it could not be vicariously liable for 

Mr. Wilson’s alleged negligence because the undisputed material 

facts demonstrated that Mr. Wilson was not on the Uber platform 

at the time of the accident, but rather was acting within his own 

personal capacity, so plaintiff could not establish a necessary 

element of his case: that Mr. Wilson was acting in the course and 

scope of his employment.

Plaintiff argued there was a dispute as to whether 

Mr. Wilson was acting as an Uber driver at the time of the 

accident, based on the evidence that Uber drivers can freely 

toggle between “offline” and “available,” and Mr. Wilson “would 

have been able to view a map showing ‘surge areas,’ ” and could 

have used that information to drive to the location of a surge to 

get the benefit of a heightened price. Plaintiff also argued it was 

unclear whether Mr. Wilson was driving for Uber at the time of 

the accident because of the inconsistencies between his 

recollections of what he was doing before he went offline and 

Uber’s records of his activity that day, affecting his credibility.

Both parties also presented public policy arguments to the 

trial court. 

The trial court granted summary judgment, concluding 

plaintiff did not meet his burden of showing a dispute as to a 

material fact. The court declined to entertain plaintiff’s first 

argument—that Mr. Wilson could have been driving to a surge 

area after he went offline—as speculation. The court observed 

“[a]dditionally,” that “case law, statute, and public policy” did not 

support a framework in which a rideshare company “would 

effectively be liable for employees whenever they drive their cars 

with a phone connected to the internet.” 

The court also rejected plaintiff’s second argument—the 

inconsistencies between plaintiff’s recollection of his activity 
7

before he went offline and Uber’s records—as immaterial. The 

court found “no dispute or confusion as to whether Wilson had his 

Uber app active at the time of the incident,” and noted 

additionally that Mr. Wilson’s mention that his last ride was in 

the UCLA area matched Uber’s location data for where he turned 

off his Uber app. “What Wilson was doing prior to the incident is 

irrelevant beyond establishing whether he was acting as an Uber 

driver at the time of the incident. All evidence supports a finding 

that he was not acting as an Uber driver at the time of the 

incident,” and “there is no evidence provided that indicated 

Wilson was not done driving for the night.” The trial court added 

that “this again presents a dangerous argument that imbues 

liability on rideshare companies for negligence committed by 

rideshare agents even when ‘offline,’ and not transporting 

passengers.” 

Judgment was entered in favor of the Uber parties and 

plaintiff filed a timely notice of appeal.

DISCUSSION

1. The Standard of Review

A defendant moving for summary judgment must show 

“that one or more elements of the cause of action . . . cannot be 

established, or that there is a complete defense to the cause of 

action.” (Code Civ. Proc., § 437c, subd. (p)(2).) Summary 

judgment is appropriate where “all the papers submitted show 

that there is no triable issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.” (Id., 

subd. (c).)

Our Supreme Court has made clear that the purpose of the 

1992 and 1993 amendments to the summary judgment statute 

was “ ‘to liberalize the granting of [summary judgment] 

motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 
8

536, 542.) It is no longer called a “disfavored” remedy. (Ibid.) 

“Summary judgment is now seen as ‘a particularly suitable 

means to test the sufficiency’ of the plaintiff’s or defendant’s 

case.” (Ibid.) On appeal, “we take the facts from the record that 

was before the trial court . . . . ‘ “We review the trial court’s 

decision de novo, considering all the evidence set forth in the 

moving and opposing papers except that to which objections were 

made and sustained.” ’ ” (Yanowitz v. L’Oreal USA, Inc. (2005) 

36 Cal.4th 1028, 1037.)

2. Contentions and Conclusions

We begin with a preliminary comment. Plaintiff criticizes 

the trial court for several of its observations, such as that under 

plaintiff’s theory, a rideshare company “would effectively be liable 

for employees whenever they drive their cars with a phone 

connected to the internet.” Plaintiff asserts the trial court’s 

summary judgment was “based on public-policy perspectives as 

opposed to the existence of a triable issue of fact,” and that we 

should not “bless the trial court’s decision to ignore the summary 

judgment standard of review.” 

We do not see the trial court’s ruling as “based on publicpolicy perspectives.” It was based on the absence of any dispute 

on the material facts. Our review of the record compels us to 

agree with the trial court’s assessment that “[a]ll evidence 

supports a finding that [Mr. Wilson] was not acting as an Uber 

driver at the time of the incident,” and “there is no evidence 

provided that indicated Wilson was not done driving for the 

night.” Since that is so, the trial court’s ruling was entirely 

consonant with the statutory requirements for summary 

judgment we have just described.

We turn to plaintiff’s arguments for a contrary conclusion.
9

Plaintiff’s first contention is that “[a] jury should have 

determined whether [Mr.] Wilson was acting ‘in the course of 

Uber’s business’ when he hit [plaintiff] with his car.” The core of 

plaintiff’s argument is that the Uber app was always open on 

Mr. Wilson’s phone, so when he went offline at 2:24 a.m., he 

could have been looking for a surge, he could have seen a surge 

(had there been one, of which there is no evidence), and he could 

have been driving toward a surge area in offline status when the 

collision occurred, intending to switch to “available” status when 

he got there. There are too many “could haves” in this 

speculative scenario, and there is no support for it in the 

evidence. 

The evidence plaintiff relies on is the undisputed evidence 

on surge pricing and that Mr. Wilson never closed the Uber app 

on his phone. Plaintiff cites Uber’s records showing the times of 

all Mr. Wilson’s statuses and locations while driving for Uber for 

the five weeks preceding and on the night of the collision. These 

records show, plaintiff says, that Mr. Wilson frequently toggled 

between “available” and “offline” while he was driving. Plaintiff 

also cites Mr. Wilson’s affirmative response to the question, “So if 

your app is on and you’re in the available status, prepared to 

accept a ride, you can see the red surge zones on the—the map on 

the app screen, and you can drive towards it to try to pick up 

rides in the surge zone area?” (Italics added.) Mr. Wilson 

answered, “Yes, if I want to.” He also testified that “you can 

make more money picking up a ride in a surge versus no surge.” 

Plaintiff tells us that “most importantly, [plaintiff] presented 

evidence that Wilson toggled between ‘available’ and ‘offline’ 

multiple times during the five hours the [sic] he drove for Uber on 

the night of the collision.” 
10

In the first place, none of the above is evidence that, when 

he toggled between “available” and “offline,” Mr. Wilson was in 

fact driving toward a surge zone in offline status—on the night of 

the collision or at any other time. Moreover, and “most 

importantly,” the evidence does not show “that Wilson toggled 

between ‘available’ and ‘offline’ multiple times during the five 

hours the [sic] he drove for Uber on the night of the collision.” 

Quite the opposite: The evidence shows he went to offline status 

once—for six seconds, from 12:40:58 a.m. to 12:41:06 a.m.—

during the almost five hours he drove for Uber that night.3

In short, there is nothing here for a jury to decide;

plaintiff’s claim of what Mr. Wilson “could have” done is complete 

speculation, and juries are not permitted to speculate.

Plaintiff asserts the data showed “a triable issue of fact as 

to whether [Mr. Wilson] was actually ‘done driving’ at 2:24 a.m.,” 

or whether he was “toggl[ing] back-and-forth between ‘available’ 

and ‘offline’ ” consistent with his “recent behavior.” Plaintiff says 

Uber’s records show Mr. Wilson frequently toggled between 

“available” and “offline” while he was driving, “with gaps between 

the two that were much longer than the four-minute interval 

between 2:24 a.m. and 2:28 a.m.,” and at times he drove much 

3 Similarly, plaintiff follows that misstatement of the 

evidence with the statement that “[t]o increase the amount of 

money he made from Uber, Wilson would identify himself as 

‘offline’ in his Driver App, and drive towards a ‘surge zone.’ ” 

That misstates the evidence, too. The only evidence plaintiff cites 

is the undisputed fact that 7.5 percent of Mr. Wilson’s earnings 

during the five weeks before the accident were bonuses for surge 

rates. This is evidence he sometimes drove to or in surge zones, 

but it is not evidence he “would identify himself as ‘offline’ in his 

Driver App” while doing so.
11

later than 2:28 a.m. For this plaintiff cites 60 pages of earnings 

records for Mr. Wilson, but does not identify where in that data 

any particular items supporting the assertion can be found. In 

any event, whether he intended to drive later (and there is no 

evidence of that) is irrelevant to his status at the time of the 

accident, when he was indisputably offline and unable to receive 

or accept requests for rides.

Plaintiff also insists a jury should have determined 

whether Wilson is a credible witness, because his testimony 

about how long he had been driving and where he drove before he 

went offline (see ante, at pp. 5-6) was contradictory and conflicted 

with Uber’s records. Plaintiff concludes that “[b]ecause a 

reasonable juror could conclude that Wilson is not a credible 

witness, a reasonable juror could also conclude that Wilson was 

not ‘done driving for the night.’ ” As we have already stated, 

what Mr. Wilson planned to do later in the night is irrelevant; 

Uber’s records confirm exactly where and when Mr. Wilson went 

offline, that is, at 2:24 a.m. and more than a mile from the 

accident site. (Cf. Morales-Simental v. Genentech, Inc. (2017) 

16 Cal.App.5th 445, 461 [“any credibility issues surrounding [the 

employee-driver]’s testimony were not material to the resolution 

of the . . . issue on which the [summary judgment] motion 

turned”]; Richards v. Department of Alcoholic Beverage Control 

(2006) 139 Cal.App.4th 304, 319 [“Summary judgment generally 

cannot be denied based on lack of credibility alone.”].)

Plaintiff’s insistence that Mr. Wilson could not have both 

gone to McDonald’s, bought food, and driven to the accident site 

in the four or five minutes after he went offline, does not change 

the undisputed fact that he went to offline status at 2:24 a.m. at a 

location in West Los Angeles that was a mile or so from the scene 
12

of the accident, and called 9-1-1 to report he hit a pedestrian at 

2:28 a.m. The rest is immaterial. The undisputed material facts 

show Mr. Wilson was not acting as an Uber driver at the time of 

the accident.

DISPOSITION

The judgment in favor of the Uber parties is affirmed. The 

Uber parties to recover costs on appeal.

GRIMES, J.

WE CONCUR:

STRATTON, P. J. 

VIRAMONTES, J.
Filed 9/20/24

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MACKENZIE YOUNG JAY 

KIM, 

Plaintiff and Appellant,

v.

UBER TECHNOLOGIES, INC., 

et al.,

Defendants and Respondents.

 B331247

 Los Angeles County

 Super. Ct. No. 20STCV25305

ORDER CERTIFYING

OPINION FOR 

PUBLICATION

[No Change in Judgment]

THE COURT: 

The opinion in the above-entitled matter filed on

August 30, 2024, was not certified for publication in the Official 

Reports. For good cause, it now appears that the opinion should 

be published in the Official Reports and it is so ordered.

There is no change in the judgment.

____________________________________________________________

STRATTON, P. J. GRIMES, J. VIRAMONTES, J.