Proposition 22 and Uber/Lyft Tort Liability

Bottom line. Proposition 22 is an employment classification statute. Its text, structure, history, and ballot record all confirm its limited scope. Business and Professions Code § 7451 classifies app-based drivers as independent contractors "with respect to the app-based driver's relationship with a network company." That language addresses the bilateral driver-to-company relationship, not third-party tort claims by injured passengers and members of the public. Even if § 7451 reached tort claims, only two of the seven theories would even arguably be affected — the other five would survive intact.

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A. Three tests for three different questions

The employment-classification question is not uniform across California law. (Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, 927.)

In S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 351, the Supreme Court explained that "the common law and statutory purposes of the distinction between 'employees' and 'independent contractors' are substantially different," and that the common-law principles in the tort context do not govern in the employee-benefit statutory context.

Dynamex adopted the ABC test in "one specific context," wage orders. (Dynamex, at pp. 913-914.) Labor Code § 2775 codified that test for wage-and-hour purposes. Proposition 22 was enacted in response to Labor Code § 2775. (Castellanos v. State of California (2023) 89 Cal.App.5th 131, 143, review granted June 28, 2023, affd. on other grounds (2024) 16 Cal.5th 588.)

Borello, the tort vicarious liability test, was never displaced. Uber's own post-arbitration briefing in Rutkovitz conceded that Borello, not Dynamex or Proposition 22, governs the vicarious-liability inquiry in tort.

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B. Section 7451's limiting clause

Business and Professions Code § 7451 classifies app-based drivers as independent contractors "with respect to the app-based driver's relationship with a network company." That language addresses the bilateral driver-to-company relationship, not third-party tort claims by injured passengers and members of the public.

The opening "notwithstanding" clause enumerates only the Labor Code, the Unemployment Insurance Code, and Department of Industrial Relations orders. The Public Utilities Code is absent. The Civil Code is absent.

Under California's surplusage canon, courts must give meaning to every word, and the thirteen-word limiting clause cannot be read out of the statute. (People v. Valencia (2017) 3 Cal.5th 347, 357.)

The contrast with Arizona is dispositive. Arizona Revised Statutes § 23-1603 classifies app-based drivers as independent contractors "for all purposes" under state and local laws. Proposition 22's drafters knew how to write those words. They did not.

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C. The deliberate omission of the Public Utilities Code and Civil Code

Section 7451 enumerates specific codes and conspicuously omits the statutory frameworks on which multiple independent liability theories depend. Where a statute speaks to one subject and omits a parallel provision for a closely related subject, courts treat the omission as deliberate. (In re Jennings (2004) 34 Cal.4th 254, 273.) The maxim expressio unius est exclusio alterius applies.

Code of Civil Procedure § 1858 bars courts from inserting what voters omitted: "In the construction of a statute . . . the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted."

The two statutes Prop 22 conspicuously did not amend:

• Public Utilities Code § 5354 — the statutory imputation rule. Deep dive →
• Civil Code § 2100 — the common carrier nondelegable duty of utmost care. Deep dive →

Both remain fully in force.

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D. Voter intent confirms the limited scope

Courts "cannot presume that . . . the voters intended the initiative to effect a change in law that was not expressed or strongly implied in either the text of the initiative or the analyses and arguments in the official ballot pamphlet." (People v. Valencia, 3 Cal.5th at p. 364.)

The official ballot title was:

"Exempts App-Based Transportation and Delivery Companies from Providing Employee Benefits to Certain Drivers."

No argument in the voter guide told voters that a "yes" vote would also immunize TNCs from tort liability when their drivers injure members of the public. The Voter Information Guide focused exclusively on driver work conditions and benefits. Nothing in the title, summary, ballot pamphlet, measure text, or statutory provisions enacted by Proposition 22 mentioned common-law tort liability.

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E. Judicial estoppel from Castellanos

In Castellanos v. State, 89 Cal.App.5th 131, Uber's and Lyft's coalition defended Proposition 22 against a single-subject challenge by arguing its single "common theme or purpose" was "the creation of a new balance of benefits and obligations for app-based drivers in lieu of either traditional employment or traditional independent contractor status." (Id. at p. 159.)

The Court of Appeal accepted that characterization. The Supreme Court affirmed on other grounds and did not disturb the single-subject reasoning. (Castellanos v. State of California (2024) 16 Cal.5th 588.)

If § 7451 also eliminates tort liability to members of the public, then Proposition 22 embraces a second subject: tort reform. That was not disclosed to voters and is not part of the "common theme" that saved the initiative. The TNC is bound by the characterization its own proponents advanced to save the measure. Judicial estoppel applies. (Victrola 89 LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 358.)

In plain English: Uber and Lyft told the Court of Appeal that Proposition 22 was about labor classification to keep the initiative from being struck down. They cannot now tell trial courts that the same initiative was about tort immunity.

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F. Section 7451's "not an agent" language does not bar non-agency theories

The TNC's other textual argument is that § 7451 provides that drivers are not "employees or agents." The statute does not say drivers are "not agents" in the abstract. It says they are not "employees or agents with respect to the app-based driver's relationship with a network company."

More fundamentally, the theories that carry the greatest weight in a TNC case do not require any agency finding:

• PUC § 5354 operates through the permit holder's "approval or consent" — not through agency.
• Direct negligence, negligent retention, and negligent undertaking target the TNC's own institutional conduct.
• The common carrier nondelegable duty attaches by virtue of the CPUC permit, not agency.

Even if § 7451 extended to passenger tort claims, only two of the seven theories (Secci regulated hirer and ostensible agency) would even arguably be affected — and both have independent doctrinal pathways that survive a narrow reading of § 7451's agency language anyway.

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CACI 3704's 2025 update confirms the reading

The Judicial Council's 2025 update to CACI 3704 is consistent with this analysis. The Advisory Committee on Civil Jury Instructions deleted a reference to § 7451 from the instruction's user notes, stating that the deleted sentence "does not directly relate to vicarious liability for tort claims."

The Advisory Committee's decision not to tie the standard tort vicarious-liability instruction to Proposition 22 confirms that § 7451's classification test does not settle the vicarious-liability question. The Committee is not in the business of taking sides in pending litigation; it removed the cross-reference because the cross-reference was wrong on the law.

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Putting it together: the Prop 22 defense argument fails on every level

Defense argument	Why it fails
Prop 22 immunizes Uber/Lyft from tort liability	§ 7451's "notwithstanding" clause omits the PUC and Civil Code; surplusage canon governs
§ 7451 reaches all driver-related claims	"with respect to the app-based driver's relationship with a network company" — limiting clause
Voters understood Prop 22 to limit tort liability	Ballot title and Voter Information Guide spoke only of employment classification
Borello does not apply post-Prop 22	Borello is the tort test; Prop 22 was enacted in response to Labor Code § 2775, not Borello
Drivers are "not agents" under § 7451	Limited to driver-network relationship; doesn't bar non-agency theories like § 5354, direct negligence, negligent retention, negligent undertaking, common carrier nondelegable duty
Castellanos confirms broad scope	Castellanos saved Prop 22 by narrowing its subject to labor classification — TNCs are judicially estopped from broadening it now

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Practitioner playbook

1. Lead with the limiting clause. "with respect to the app-based driver's relationship with a network company" — quote it in every opposition brief.
2. Cite the Arizona contrast. Ariz. Rev. Stat. § 23-1603. Prop 22's drafters knew how to write "for all purposes." They did not.
3. Use the surplusage canon. Valencia gives you the doctrinal hook to refuse to read the limiting clause out of the statute.
4. Invoke judicial estoppel from Castellanos. Uber and Lyft argued Prop 22 was about labor classification to save it from a single-subject challenge. They are bound by that characterization.
5. Quote the CACI 3704 deletion. A Judicial Council Advisory Committee determination on point.
6. Make the Prop 22 argument peripheral. Even if it reached tort claims, only 2 of 7 theories would arguably be affected. Frame the case around the 5 theories Prop 22 cannot touch.

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See also

• Hub: The Seven-Theory Framework
• PUC § 5354 — Statutory Imputation Without Employment
• The Gonzales Writ + the Asymmetry Problem
• The $1 Million Coverage Myth + Prop 51 Single Tortfeasor
• Press: April 30, 2026 Daily Journal Byline + Rutkovitz Award

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