ORDER DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT OR DECERTIFICATION

Docket No. 479, 493.

EDWARD M. CHEN, District Judge.

Plaintiffs Douglas O'Connor, Thomas Colopy, Matthew Manahan, and Elie Gurfinkel brought the instant class action against Defendant Uber Technologies, Inc., alleging that Uber misclassifies drivers as independent contractors rather than employees. Docket No. 330 (Second Amended Complaint) (SAC) at ¶ 3. The Court has certified the class action to bring two claims: (1) a tips claim, in which Plaintiffs allege that Uber represented that tips are included in the fare but do not give the total amount of the tip to the drivers, and (2) an expense reimbursement claim, in which Plaintiffs allege that Uber does not pay vehicle-related and phone expenses that employees are entitled to. See Docket No. 342 at 60; Docket No. 395 at 31.

Uber now brings a motion for summary judgment on Plaintiffs' tips claim. Docket No. 479 (Mot.). Uber contends that Plaintiffs' tips claim is fundamentally based on an "Uber's alleged misrepresentations to riders that a `tip is included' in the fare." Id. at 1. Thus, Uber argues that Plaintiffs' tips claim fails because: (1) Plaintiffs cannot prove first-person reliance, as required by the UCL; (2) the named Plaintiffs lack standing because they cannot prove that they ever had a rider who saw Uber's alleged misrepresentation; (3) riders' alleged classwide exposure to the alleged misrepresentation was de minimis; and (4) no rider who used the Uber app since November 10, 2014 could reasonably believe a gratuity is included because Uber's rider agreements state that the fare does not include gratuity. Id. at 1-2. In the alternative, Uber argues that decertification is appropriate because there is no ascertainability, commonality, predominance, or superiority. Id. at 2.

Uber's motion for summary judgment or decertification came on for hearing before the Court on March 24, 2016. For the reasons stated on the record and below, the Court DENIES Uber's motion for summary judgment or decertification. In short, Plaintiffs' tips claim is not a typical case based on fraud or misrepresentation. As this Court previously stated in the class certification order, Plaintiffs allege that Uber did in fact charge every rider for a tip (demonstrated by its advertisements that "tip is included" in the fare) on every ride. Docket No. 342 at 58. Thus, Plaintiffs' theory is not that Uber misrepresented or committed fraud by advertising that tip is included in the fare; instead, Plaintiffs are arguing that Uber was being truthful when it made such representations, and that because Uber charges a tip it is required to distribute the tip in its entirety to the drivers. Docket No. 484 (Opp.) at 3; see also Docket No. 312 at 15 (Plaintiffs' class certification reply brief, stating: "Plaintiffs' claim they are seeking to certify under § 351 is not that passengers chose not to leave additional tips because they were misled — instead, Plaintiffs argue that passengers paid tips (because they were labeled as such), but they were never remitted to drivers."). Because Plaintiffs' tip claim is not based on a traditional theory of misrepresentation, the elements of a misrepresentation claim are not at issue.

To the extent that Uber relies on the effect of its statement in its rider agreements since November 2014 that tip is not being charged, this goes to the ultimate question of whether or not the jury can find that tip is included in every fare charged by Uber.1 The November 2014 disclaimer is a piece in the universe of statements that Uber has made about whether or not tip is included, just as more recent statements made by Uber that tip is included is relevant to the jury's determination.2 Because Plaintiffs assert an all-or-nothing claim (either Uber's charges did or did not include tips), the beliefs of individual riders are not at issue, and Plaintiffs are not required to prove that every rider believed that they were leaving a tip.3 Thus, the question of whether Uber charges tip is a singular question that is not dependent on a showing of individualized reliance by each rider, but instead turns on an analysis of Uber's uniform practice and policy. This is especially the case in view of Uber's admission that its conduct with respect to the way it charges customers and its goal of not requiring customers to deal with cash is uniform. See Docket No. 498 at 9 ("the policy of the company — and it was very clear — was to make it a cashless, seamless approach.").

For these reasons, the Court DENIES Uber's motion for summary judgment and decertification.

This order disposes of Docket Nos. 479 and 493.

IT IS SO ORDERED.