1 GIBSON, DUNN & CRUTCHER LLP

THEODORE J. BOUTROUS, JR., SBN 132099

2 tboutrous@gibsondunn.com
THEANE EVANGELIS, SBN 243570
3 tevangelis@gibsondunn.com
BLAINE H. EVANSON, SBN 254338
4 bevanson@gibsondunn.com
HEATHER L. RICHARDSON, SBN 246517
5 hrichardson@gibsondunn.com
333 South Grand Avenue
6 Los Angeles, CA 90071-3197
Telephone: 213.229.7000
7 Facsimile: 213.229.7520
8 Attorneys for Defendant
Uber Technologies, Inc.
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF SAN FRANCISCO
11

12 PEOPLE OF THE STATE OF CALIFORNIA, CASE NO. CGC-20-584402

13 Plaintiff, UBER’S EX PARTE APPLICATION FOR
STAY OF PRELIMINARY INJUNCTION
14 v. PENDING APPEAL; MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT
15 UBER TECHNOLOGIES, INC., a Delaware THEREOF
Corporation; LYFT, Inc., a Delaware
16 Corporation; and DOES 1-150, Inclusive, Hon. Ethan P. Schulman
Department 302
17 Defendants.
HEARING:
18 Date: August 13, 2020
Time: 11:00 a.m.
19
Action Filed: May 5, 2020
20 Trial Date: None Set
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 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT on August 13, 2020, at 11:00 a.m., or as soon as the matter
3 may be heard before the Honorable Ethan P. Schulman of the San Francisco County Superior Court,
4 Department 302, located at 400 McAllister Street, San Francisco, California 94102, Defendant Uber
5 Technologies, Inc. will and hereby does move this Court ex parte for an order staying the preliminary
6 injunction issued by this Court on August 10, 2020, under California Code of Civil Procedure section
7 916, subdivision (a), pending completion of Uber’s appeal.
8 This application is made on the following grounds: first, this Court’s preliminary injunction is
9 mandatory, not prohibitory, because it “drastically change[s] the status quo by compelling Lyft [and
10 Uber] to reclassify all of its hundreds of thousands of California drivers as employees” (Rogers v. Lyft,
11 Inc. (Super.Ct. Apr. 30, 2020) 2020 WL 2532527, at *7), and thus it is automatically stayed pending
12 appeal (Code Civ. Proc. § 916, subd. (a)); second, even if the Court concludes that the preliminary
13 injunction is prohibitory, the Court should exercise its discretion to stay the injunction pending appeal
14 because Uber will present substantial merits questions on appeal and suffer catastrophic and
15 irreversible harm if the injunction is not stayed; and third, even if the Court declines to stay the
16 injunction for the duration of Uber’s appeal, the Court should at least temporarily stay the injunction
17 while Uber files a petition for writ of supersedeas in the Court of Appeal.
18 As explained in the Declaration of Theane Evangelis, counsel for Uber gave notice of this ex
19 parte application in accordance with California Rule of Court 3.203 at 1:42 p.m. on August 11, 2020,
20 by email, to Plaintiff’s counsel and counsel for Defendant Lyft, Inc. (Declaration of Theane Evangelis
21 ¶ 2.) The ex parte notice was timely and included all the information required by Rule of Court 3.1204.
22 Counsel for Lyft stated that it did not oppose the relief sought and would appear at the ex parte hearing.
23 (Id. ¶ 3.) Counsel for Plaintiff stated that Plaintiff opposed the relief sought and would appear at the
24 hearing. (Ibid.)
25 Pursuant to California Rule of Court 3.1202(a), the names, addresses, telephone number, and
26 email address for the attorneys representing other parties in this matter are:
27 ///
28 ///

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 1 Attorneys for Plaintiff:
Satoshi Yanai, Esq. Yvonne R. Meré, Esq.
2 Minsu D. Longiaru, Esq. Molly J. Alarcon, Esq.
Marisa Hernández-Stern, Esq. Sara J. Eisenberg, Esq.
3
Mana Barari, Esq. Matthew D. Goldberg, Esq.
4 E. Erandi Zamora-Gradiano, Esq. OFFICE OF THE SAN FRANCISCO CITY
OFFICE OF THE ATTORNEY GENERAL ATTORNEY
5 1515 Clay Street, 20th Floor 1390 Market Street, Sixth Floor
P.O. Box 70550 San Francisco, California 94102-5408
6 Oakland, California 94612-0550 Telephone: (415) 554-3800
Telephone: (510) 879-1300 Yvonne.Mere@sfcityatty.org
7 Satoshi.Yanai@doj.ca.gov Molly.Alarcon@sfcityatty.org
Minsu.Longiaru@doj.ca.gov Sara.Eisenberg@sfcityatty.org
8 Marisa.Hernandez-Stern@doj.ca.gov Matthew.Goldberg@sfcityatty.org
9 Mana.Barari@doj.ca.gov Shinobu.Ichino@sfcityatty.org
Erandi.Zamora@doj.ca.gov Martina.Hassett@sfcityatty.org
10 Sean.Puttick@doj.ca.gov
Michael Bostrom, Esq. Mark Ankcorn, Esq.
11 OFFICE OF THE LOS ANGELES CITY Kevin B. King, Esq.
ATTORNEY Marni Von Wilpert, Esq.
12 200 North Spring Street, 14th Floor OFFICE OF THE SAN DIEGO CITY
Los Angeles, California 90012 ATTORNEY
13 Telephone: (213) 978-1867 1200 Third Avenue, Suite 1100
14 michael.bostrom@lacity.org San Diego, California 92101-4100
david.torres@lacity.org Telephone: (619) 236-6220
15 danitza.munoz@lacity.org MAnkcorn@sandiego.gov
KBKing@sandiego.gov
16 MVonWilpert@sandiego.gov
marissag@sandiego.gov
17 Attorneys for Defendant Lyft, Inc:
Christa M. Anderson, Esq. Rohit K. Singla, Esq.
18 Rachael E. Meny, Esq. Jeffrey Y. Wu, Esq.
19 R. James Slaughter, Esq. Justin Raphael, Esq.
Brook Dooley, Esq. MUNGER, TOLLES & OLSON LLP
20 Eric H. MacMichael, Esq. 560 Mission Street, 27th Floor
Elizabeth McCloskey, Esq. San Francisco, CA 94105
21 KEKER, VAN NEST & PETERS LLP Telephone: 415.512.4000
633 Battery Street, San Francisco, CA 94111- rohit.singla@mto.com
22 1809 jeffrey.wu@mto.com
Telephone: 415.391.5400 justin.raphael@mto.com
23 canderson@kvn.com
rmeny@keker.com
24
rslaughter@keker.com
25 bdooley@keker.com
emacmichael@keker.com
26 emccloskey@keker.com
LYFTSUB@keker.com
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 1 Uber previously filed an unopposed ex parte application for an order extending time to respond
2 to the complaint, and an ex parte application for an order striking, or alternatively granting leave to
3 submit response to, the Declaration of Michael Reich.
4 Uber’s ex parte application is based on this notice, the attached application and memorandum
5 of points and authorities, the Declarations of Theane Evangelis and Brad Rosenthal in support thereof,
6 all papers on file in this action, all matters of which judicial notice may be taken, and upon such oral
7 and documentary evidence as the Court may permit at or prior to the hearing of this matter.
8

9 DATED: August 11, 2020

10 GIBSON, DUNN & CRUTCHER LLP
THEODORE J. BOUTROUS JR.
11 THEANE EVANGELIS
BLAINE H. EVANSON
12 HEATHER L. RICHARDSON
13

14 By: /s/ Theane Evangelis

Theane Evangelis
15
Attorneys for Defendant
16 Uber Technologies, Inc.
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 1 I. INTRODUCTION
2 On August 10, 2020, this Court issued a preliminary injunction enjoining Uber (and Lyft) “from
3 classifying their Drivers as independent contractors in violation of Labor Code section 2570.3.” As
4 the Court explained just a couple months ago, this is a mandatory injunction: this “sweeping mandatory
5 injunctive relief [would] affect the rights of many tens of thousands of Lyft [and Uber] drivers who are
6 not before the Court.” (Rogers v. Lyft, Inc. (Super.Ct. Apr. 30, 2020) 2020 WL 2532527, at *6
7 (Rogers).) The Court’s characterization of the injunctive relief sought in Rogers applies fully here—
8 this is “a mandatory injunction that would drastically change the status quo by compelling Lyft [and
9 Uber] to reclassify all of its hundreds of thousands of California drivers as employees.” (2020 WL
10 2532527, at *7, emphasis added.) The Court should issue a brief order clarifying that its injunction is
11 mandatory and automatically stayed once Uber notices its appeal.
12 Even if the Court deems the injunction prohibitory, it should stay the injunction pending appeal,
13 given the substantial questions of first impression Uber’s appeal will raise and the catastrophic and
14 irreparable harm that will result from the fundamental restructuring of Uber’s Rides app that would be
15 required to comply with the injunction. In fact, Uber will almost certainly be forced to shut off the
16 Rides platform in California if the injunction goes into effect, which would irreparably harm Uber and
17 all who rely on its Rides app to generate income for them and their families—particularly in the midst
18 of a pandemic. The injunction should be stayed (regardless whether the Court deems it mandatory or
19 prohibitory) while the Court of Appeal decides whether such drastic and irrevocable change is required.
20 At a minimum, an interim stay should be granted to allow Uber to seek a writ of supersedeas
21 from the Court of Appeal. Such a short stay of a few weeks is undoubtedly warranted given the
22 enormous consequences at issue.
23 II. BACKGROUND
24 Plaintiff filed this action against Uber and Lyft on May 5, 2020. On June 25, 2020, Plaintiff
25 moved for a sweeping preliminary injunction requiring Uber and Lyft to reclassify hundreds of
26 thousands of drivers as employees.
27 Uber opposed Plaintiff’s motion for preliminary injunction on numerous grounds, including
28 that it had implemented a host of changes to its platform to ensure compliance with AB 5. (See, e.g.,

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 1 Declaration of Brad Rosenthal in support of Uber’s Opposition to Plaintiff’s Motion for Preliminary
2 Injunction (“First Rosenthal Decl.”) ¶¶ 13–40; Evangelis Decl., Ex. A at pp. 19, 34–39, 48–51.) Uber
3 also argued that it is not a “hiring entity” subject to AB 5, and even if it were, that it can satisfy each
4 prong of the ABC test because drivers who use Uber’s platform control their own businesses, set their
5 own prices, and work how and when they see fit. (See Evangelis Decl., Ex. A at pp. 39–51.) Uber
6 further argued that an injunction is unwarranted given Plaintiff’s failure to present any evidence that it
7 would suffer harm in the absence of immediate injunctive relief, and given the overwhelming and
8 undisputed evidence of harm to Uber and the drivers and riders who use its app. (See id. at pp. 54–78.)
9 On August 10, 2020, the Court ruled for Plaintiff, and “enjoined and restrained [Defendants]
10 from classifying their Drivers as independent contractors in violation of Labor Code section 2570.3,”
11 and “from violating any provisions of the Labor Code, the Unemployment Insurance Code, and the
12 wage orders of the Industrial Welfare Commission with regard to their Drivers.” (Order at 32–33.)
13 Acknowledging that Defendants had requested a stay of any injunction pending appellate review, the
14 Court stayed the injunction for ten days. (Id. at p. 33 & fn. 24; see Evangelis Decl., Ex. A at p. 102.)
15 III. ARGUMENT
16 A. The Injunction Is Mandatory and Thus Automatically Stayed Pending Appeal
17 Because the injunction is mandatory, Uber’s notice of appeal from the injunction requires an
18 automatic stay pending appeal. Plaintiff previously urged the Court not to decide whether the
19 injunction is mandatory or prohibitory, and thus the Court declined to do so. (Evangelis Decl., Ex. A
20 at pp. 11–12.) But now that the Court has issued an injunction, the Court should clarify that the
21 injunction is mandatory (as it was in Rogers)—and thus stayed while Uber’s appeal is pending. (See
22 Code Civ. Proc. § 916, subd. (a); Evangelis Decl., Ex. A at p. 12 [Plaintiff acknowledging that whether
23 the injunction is mandatory or prohibitory “has … appellate consequences”].)
24 “[A]n appeal automatically stays mandatory injunctions.” (Agricultural Labor Relations Bd. v.
25 Super. Ct. (1983) 149 Cal.App.3d 709, 716.) An injunction is mandatory where, as here, “it compels
26 performance of an affirmative act that changes the position of the parties” and thus “upset[s] the status
27 quo.” (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 452 (Davenport); see also
28 URS Corp. v. Atkinson/Walsh Joint Venture (2017) 15 Cal.App.5th 872, 884 [injunction is “mandatory

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 1 in effect if its enforcement would be to change the position of the parties and compel them to act in
2 accordance with the judgment rendered”] (URS).) By contrast, an injunction is “prohibitory” if
3 “its effect is to leave the parties in the same position as they were prior to the entry” of the injunction—
4 that is, it “preserve[s] the status quo.” (URS, 15 Cal.App.5th at p. 884; Paramount Pictures Corp. v.
5 Davis (1964) 228 Cal.App.2d 827, 838.) “Regardless of its wording” (Rogers, 2020 WL 2532527, at
6 *7 fn. 7), “[t]he substance of the injunction, not the form, determines whether it is mandatory or
7 prohibitory” (Davenport, 52 Cal.App.4th at p. 447; see also URS Corp., 15 Cal.App.5th at p. 884
8 [“[c]ourts are not ‘bound by the form of the injunction order but will look to its substance to determine
9 its real nature’”], quoting Feinberg v. One Doe Co. (1939) 14 Cal.2d 24, 28 (Feinberg)).
10 This Court has already held that an injunction reclassifying drivers as “employees” is
11 mandatory. In Rogers, the plaintiffs—just like Plaintiff here—sought “an order enjoining Lyft ‘from
12 misclassifying its drivers in California as independent contractors.’” (2020 WL 2532527, at *1.) As
13 the Court explained, such a “reclassification” injunction is mandatory: “Plaintiffs’ application does
14 not seek preliminary injunctive relief to preserve the status quo pending a final judgment, .... Rather,
15 it seeks a mandatory injunction that would drastically change the status quo by compelling Lyft to
16 reclassify all of its hundreds of thousands of California drivers as employees.” (Id. at at *7 [citation
17 omitted].)
18 Although the injunction the Rogers plaintiffs sought used prohibitory language—enjoining Lyft
19 from “misclassifying its drivers ... as independent contractors” (id. at p. *1)—this Court looked beyond
20 the “wording” and held that the injunction was mandatory because it “would drastically change the
21 status quo” (id. at p. *7 & fn.7, emphasis added). The Court followed Agricultural Labor Relations
22 Board, which held that a supposedly “prohibitory” injunction ordering an employer “not ‘to continue’”
23 its prior labor practices—which were allegedly unlawful—was, in fact, “mandatory and automatically
24 stayed on appeal” because “[i]t compels [the employer] to take affirmative action.” (149 Cal.App.3d
25 at p. 713; see also Shoemaker v. Cty. of Los Angeles (1995) 37 Cal.App.4th 618, 621, 624–625 & fn.4
26 [injunction ordering defendants to “refrain from removing” plaintiff from administrative positions
27 “undoubtedly mandatory in nature” because it “altered the status quo” and “ordered defendants to take
28 affirmative steps to restore [plaintiff] to his administrative positions”]; Feinberg, 14 Cal.2d at pp. 27–

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 1 28 [injunction restraining defendants “from employing” worker “is in its essence and effect a
2 mandatory injunction” because it “compel[s] affirmative action on the part of the defendants”].)
3 So too here. This injunction—just like in Rogers—“enjoin[s] and restrain[s] [Defendants] from
4 classifying their Drivers as independent contractors.” (Order at pp. 32–33.) Although the Court
5 observed in the Order that “[a]n injunction that restrains a defendant’s continued violation of state law
6 is prohibitory in nature” (Order at p. 16), 1 as this Court (correctly) held in Rogers, merely “wording”
7 an injunction to prohibit a violation state law does not dictate that it is prohibitory. (2020 WL 2532527,
8 at *7 fn. 7.) Rather, this injunction is mandatory because it “would drastically change the status quo
9 by compelling Lyft [and now Uber] to reclassify all of its hundreds of thousands of California drivers
10 as employees.” (2020 WL 2532527, at *7, emphasis added.) An order enjoining Uber from classifying
11 drivers as independent contractors is an order directing Uber to reclassify drivers as employees;
12 workers are either employees or independent contractors—there is no other option. (See id. at *1
13 [injunction prohibiting “misclassifying [] drivers ... as independent contractors” is mandatory].)
14 The Court recognized in the Order that “[t]here can be no question” that the Court’s injunction
15 will force Defendants “to change the nature of their business practices in significant ways.” (Order at
16 p. 30.) That observation was correct: if the injunction is not stayed, Uber will be required to
17 fundamentally restructure its business. And that cannot be done overnight. In fact, Uber will almost
18 certainly have no choice but to shut down the Rides platform completely in California for a minimum
19 of several months. (Declaration of Brad Rosenthal in support of Uber’s Ex Parte Application for Stay
20 Pending Appeal (“Second Rosenthal Decl.”) ¶ 12.) If Uber’s Rides platform emerges from the
21 restructuring, it will be a very different app.
22 The record before the Court demonstrates that it would take millions of dollars and months of
23
1
The Court’s Order cites People ex rel. Brown v. iMergent, Inc. (2009) 170 Cal.App.4th 333 for this
24 point. But in Brown, the appellate court upheld an injunction that merely required the defendants to
“abide by their [earlier] agreement”—in a stipulated judgment in a prior action—to “compl[y] with
25 California’s consumer protection laws.” (170 Cal.App.4th at pp. 337, 343.) As the Court of Appeal
explained, that injunction was prohibitory because forcing the defendants to comply with their own
26 agreement merely “maintain[ed] the status quo.” (Id. at 343.) Notably, the injunction did not require
the defendants to “to violate a contract, nor [did] it compel them to surrender any rights that were
27 lawfully held when the injunction was issued.” (Ibid.) Here, by contrast, the injunction does require
Uber to “violate” contracts with hundreds of thousands of drivers who sought out and agreed to an
28 independent contracting relationship with Uber, and it requires Uber to “surrender” its right to conduct
business as it has for nearly a decade in California.
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 1 effort to restructure the Uber Rides business model, including at least the following affirmative steps:
2 · Overhaul the Rides app from a platform that drivers can choose to use or turn off at their
3 leisure—which is not set up to onboard and manage drivers as classified employees or manage
4 transportation services—to a taxi-like “employment” system that forces drivers to work on a
5 schedule that attempts to meet fluctuating rider demand while also accounting for overtime and
6 other constraints (Second Rosenthal Decl. ¶¶ 5, 10);
7 · Build a human resource information system to track and manage drivers, including tracking
8 time and attendance, shifts, meal and rest break time, and wages and salaries (Second Rosenthal
9 Decl. ¶ 7);
10 · Create a new employment administration department to support this new “workforce” of
11 thousands of drivers, by hiring hundreds of HR representatives, recruiters, finance and
12 accounting staff, and management personnel to supervise drivers (Second Rosenthal Decl. ¶ 8;
13 Evangelis Decl., Ex. B ¶¶ 20–28);
14 · Onboard thousands of drivers who would ultimately be hired as employees, which will require,
15 among other things, training and orienting drivers; collecting, reviewing, and assessing I-9
16 Employment Eligibility Verification forms from each driver; preparing and updating employee
17 handbooks; and developing and conducting formal training sessions for drivers (Second
18 Rosenthal Decl. ¶ 9; Evangelis Decl., Ex. B ¶¶ 16–19); and
19 · Create new systems and software to generate schedules and track and control drivers’ location
20 and time, including meal and rest breaks (Second Rosenthal Decl. ¶ 10; Evangelis Decl., Ex. B
21 ¶¶ 29–35).
22 Because Uber will almost certainly need to shut down the Rides app while it builds these
23 departments and systems, millions of drivers who use the app to earn vital income will likely lose that
24 opportunity the day the injunction goes into effect—and that source of income will be lost for months,
25 at least. (Second Rosenthal Decl. ¶ 12; Evangelis Decl., Ex. A at pp. 33–78.) If Uber’s app emerges
26 from the California restructuring, it would not be the same platform—it will be forced to limit the
27 number of drivers who access the Uber Rides platform and exert significant control over the manner
28 and means of drivers’ performance (Second Rosenthal Decl. ¶ 11), which is contrary to the desires of

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 1 both drivers and riders (First Rosenthal Decl. ¶ 50; Baggett Decl. ¶ 13; Haghiri Decl. ¶¶ 5, 10–11, 13;
2 Olson Decl. ¶¶ 17–29; Evangelis Decl., Ex. A at pp. 55, 78; Amici Curiae Brief of Communities-of-
3 Color Organizations at pp. 11–16.)
4 These are all unquestionably changes to the status quo that render the injunction mandatory
5 (Rogers, 2020 WL 2532527, at *7 & fn. 7), which requires an automatic stay pending appeal (Code
6 Civ. Proc. § 916, subd. (a)).
7 B. Even if the Injunction Is Prohibitory, the Court Should Stay the Injunction
Pending Appeal
8
Even if the Court determines, contrary to its decision in Rogers, that the injunction is not
9
mandatory, the Court should exercise its discretion and stay the injunction pending appeal to avoid the
10
catastrophic and irreversible harm that would occur from the injunction becoming effective—harm that
11
could not be unwound in the event the injunction is reversed.
12
A court should issue a discretionary stay pending appeal when “necessary to protect the
13
appellants from the irreparable injury they will necessarily sustain in the event their appeal is deemed
14
meritorious.” (Mills v. Cty. of Trinity (1979) 98 Cal.App.3d 859, 861 (Mills).) Courts considering
15
discretionary stays consider two issues: (1) whether the would-be appellant needs a stay to protect “the
16
benefit of a reversal of the judgment against him,” and (2) whether it is “like[ly] that substantial
17
questions will be raised on appeal.” (Veyna v. Orange Cty. Nursery, Inc. (2009) 170 Cal.App.4th 146,
18
156-57; see also People ex rel. San Francisco Bay Conservation & Dev. Comm'n v. Town of Emeryville
19
(1968) 69 Cal.2d 533, 537 [stay pending appeal was necessary because “difficult questions of law are
20
involved and the fruits of a reversal would be irrevocably lost unless the status quo is maintained”]
21
(Emeryville).) Both conditions for a stay are met here.
22
Irreparable Injury. As already explained, without a stay Uber will almost certainly have to
23
shut down its Rides app completely in California—probably for many months, if not more than a year—
24
while it attempts to restructure. (See discussion supra pp. 7–8; Second Rosenthal Decl. ¶ 12.) If the
25
Court’s injunction is reversed on appeal, millions of California drivers will have needlessly lost the
26
opportunity to make money with the Uber platform for several months, and many more riders will have
27
been deprived transportation options as well. (See, e.g., Amici Curiae Brief of Communities-of-Color
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 1 Organizations at pp. 11–16.) Uber, drivers, and riders will all suffer an enormous loss that victory on
2 appeal cannot remedy—the very definition of “irreparable injury.” (Mills, supra, 98 Cal.App.3d at p.
3 861.) Even if Uber revives its Rides business in California under an employment model while the
4 appeal is pending, it could not undo the loss of goodwill it will incur from riders and drivers alike from
5 shutting down its business for months on end. (McCrary Decl. ¶¶ 42–43, 61–68; Stuhlbarg Int’l Sales
6 Co. v. John D. Brush & Co. (9th Cir. 2001) 240 F.3d 832, 841 [“[e]vidence of threatened loss of …
7 goodwill” supports finding of irreparable harm]; Donahue Schriber Realty Grp., Inc. v. Nu Creation
8 Outreach (2014) 232 Cal.App.4th 1171, 1185 [same].)
9 Substantial Legal Questions. Uber’s appeal also presents “difficult questions of law.”
10 (Emeryville, supra, 69 Cal.2d at p. 537.) This Court’s Order is the first to consider (even if only
11 preliminarily) whether Uber is a “hiring entity” under AB 5, or to determine that all drivers who use
12 Uber are “employees” under AB 5. The questions raised by the Court’s holdings on these issues of
13 first impression are at least “substantial.” (Veyna, 170 Cal.App.4th at 157.) For example, under the
14 Court’s sweeping view of what constitutes a “hiring entity,” anyone who lists their empty guest house
15 on Airbnb may be Airbnb’s “employee,” because they are using Airbnb to “provid[e] ... services for
16 remuneration.” (Order at p. 21; see also Evangelis Decl., Ex. A at pp. 16–18, 39–51.) The same would
17 be true under the Court’s view of prong “B” of the ABC test—because helping customers rent
18 residential space is “part of [Airbnb’s] usual, everyday business operations,” anyone who lists a space
19 for rental on Airbnb “can only be viewed ‘as working in the hiring entity’s business.’” (Order at p. 26;
20 see also Evangelis Decl., Ex. A at pp. 18–21, 39–51.) Whether AB 5 extends this far should be decided
21 by an appellate court before Uber and the drivers who use its Rides app are forced to bear the
22 consequences of reclassification.
23 The injunction’s terms are also vague and overbroad. Plaintiff has admitted that Uber need not
24 reclassify all drivers as employees to comply with the statute (Reply Br. at p. 25); as a result, even
25 under Plaintiff’s view of the law, there are additional business changes Uber could make—granting
26 even more independence to drivers—that could satisfy AB 5. Yet, Plaintiff did not ask for an injunction
27 setting out the specific changes needed to satisfy the ABC test—instead, it sought and received a
28 sweeping injunction requiring Uber to reclassify all drivers as employees regardless of their

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 1 circumstances and even if Uber makes further changes to increase driver independence. (Order at pp.
2 32–33.) By preventing drivers from ever being classified as “independent contractors,” the injunction
3 violates the requirement that an injunction “clearly define … the conduct prohibited” (Evans v. Evans
4 (2008) 162 Cal.App.4th 1157, 1167) and “go no further than is absolutely necessary” to protect the
5 plaintiff’s rights (People v. Mason (1981) 124 Cal.App.3d 348, 354).
6 No Countervailing Harm to Plaintiff. The harm to Uber alone supports the grant of a
7 discretionary stay—and the fact that a stay will not have any significant effect on Plaintiff even further
8 supports granting it. (See Mills, 98 Cal.App.3d at p. 861 [granting stay because it “is necessary to
9 protect the appellants from the irreparable injury,” while also noting, as further support, that “[a] stay
10 will not result in disproportionate injury to respondent”].) Any monetary harm Plaintiff might incur as
11 the result of a stay can easily be recovered in this case. The Court held that the primary harm Plaintiff
12 would suffer absent an injunction is the lack of various taxes Defendants would pay if drivers were
13 classified as employees. (Order at pp. 27–28 [quoting Dynamex, 4 Cal.5th at pp. 912–913].) But
14 Plaintiff can seek monetary damages if it wins on the merits, and lost funds can be recovered. (Mills,
15 98 Cal. App. 3d at p. 861 [stay-pending-appeal that allowed the appellant to take fees from the
16 respondent did “not result in disproportionate injury to respondent, since excessive fees may easily be
17 refunded” if the appellant lost]; see also Friedman v. Friedman (1993) 20 Cal.App.4th 876, 890 [if
18 compensatory relief is available for a harm, it is not “irreparable”].) 2
19 C. At a Minimum, the Court Should Temporarily Stay the Injunction to Permit Uber
to Petition the Court of Appeal for a Writ of Supersedeas
20
Even if the Court declines to stay the injunction pending completion of Uber’s appeal, the Court
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should, at a minimum, exercise its discretion to temporarily stay the injunction while Uber files a
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petition for writ of supersedeas in the Court of Appeal. This limited relief will likely only require a
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stay for a few weeks.
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26 2
Although the Court also cited “harm to misclassified workers who lose significant workplace
protections” and “unfairness to employers who must compete with companies that misclassify” as
27 harms to Plaintiff absent an injunction (Order at p. 28), there is no evidence in the record that any
worker’s rights have been violated or that any employer has been harmed. As Uber has explained, the
28 vast majority of drivers have rejected Plaintiff’s demand that they be treated as “employees”—they
value their independence and the ability to control their own work that Uber’s app provides.
Gibson, Dunn & 12
Crutcher LLP
UBER'S EX PARTE APPLICATION FOR STAY OF PRELIMINARY INJUNCTION PENDING APPEAL – CASE NO.
CGC-20-584402
 1 IV. CONCLUSION
2 The Court should clarify that the injunction is mandatory and therefore automatically stayed
3 pending Uber’s appeal. Even if the Court deems the injunction prohibitory, it should issue a stay to
4 avoid the severe and irreparable harm that would result. At the very least, the Court should issue an
5 interim stay so that Uber can petition the Court of Appeal for a writ of supersedeas.
6

7 DATED: August 11, 2020

8 GIBSON, DUNN & CRUTCHER LLP
THEODORE J. BOUTROUS JR.
9 THEANE EVANGELIS
BLAINE H. EVANSON
10 HEATHER L. RICHARDSON
11

12 By: /s/ Theane Evangelis

Theane Evangelis
13
Attorneys for Defendant
14 Uber Technologies, Inc.
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Gibson, Dunn & 13

Crutcher LLP
UBER'S EX PARTE APPLICATION FOR STAY OF PRELIMINARY INJUNCTION PENDING APPEAL – CASE NO.
CGC-20-584402