On 04/01/2009 TIMOTHY MCCLEERY filed a Labor - Other Labor lawsuit against ALLSTATE INSURANCE COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIHU M. BERLE, MICHAEL L. STERN, ERNEST HIROSHIGE, JOHN P. SHOOK, CARL J. WEST and TERESA SANCHEZ-GORDON. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
ELIHU M. BERLE
MICHAEL L. STERN
JOHN P. SHOOK
CARL J. WEST
ADVANCED FIELD SERVICES INC.
ALLSTATE INSURANCE COMPANY
CAPITAL PERSONNEL SERVICES INC.
CIS GROUP LLC
DOES 1 THROUGH 30
FARMERS GROUP INC.
NORTH AMERICA COMPASS INSURANCE SERVICES
BENARDO STEPHEN M. ESQ.
APPELL BARRY M. ESQ.
SHENOI ALLAN A. ESQ.
SHENOI ALLAN A.
APPELL BARRY M.
BENARDO STEPHEN M.
KUN MICHAEL S. ESQ.
NELSON MULLINS RILEY & SCARBOROUGH LLP
EPSTEIN BECKER & GREEN LAW OFFICES OF
PALEY ANDREW M. ESQ.
KVETON KYLE ESQ.
BONONI LAW GROUP
SULLIVAN KEVIN D.
BONONI MICHAEL J.
MANNING CORY E.
PALEY ANDREW M.
KUN MICHAEL S.
3/5/2020: Motion to Compel - MOTION TO COMPEL FURTHER RESPONSES TO SPECIAL INTERROGATORIES, SET ONE, PROPOUNDED UPON PLAINTIFF YVONNE BECKNER AND REQUEST FOR SANCTIONS IN THE SUM OF $3,060.00
12/26/2018: Notice - Plaintiff's Notice of Case Reassignment
3/3/2011: PROOF OF SERVICE RE DEFENDANT FARMERS GROUP, INC.S OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION REGARDING PLAINTIFFS ANTICIPATED MOTION TO COMPEL DISCOVERY RESPONSES THAT HAVE NOT YET BEEN SERVED
1/23/2013: ORDER GRANTING PLAINTIFFS' EX PARTE APPLICATION FOR AN ORDER CONTINUING FILING AND HEARING DATES FOR CLASS CERTIFICATION MOTIONS AND GRANTING LEAVE TO FILE AMENDMENT TO COMPLAINT, ADDING APRIL JACKSON
3/6/2013: NOTICE OF MOTION AND MOTION BY PLAINTIFFS FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DANIEL J. KOES
5/30/2013: DEFENDANT FARMERS GROUP, INC.?S NOTICE OF JOINDER TO DEFENDANT ALLSTATE INSURANCE COMPANY?S MOTION TO STRIKE PORTIONS OF PLAINTIFFS? FOURTH AMENDED COMPLAINT
9/4/2013: CLASS ACTION FILING OF APRIL (BOYLES) JACKSON?S CORRECTED DECLARATION WITH EXHIBITS
10/15/2013: DEFENDANT FARMERS GROUP, INC.'S NOTICE OF MOTION AND MOTION TO COMPEL FURTHER RISPONSES TO ITS FIRST SET OF SPECIALLY PREPARED INTERROGATORIES TO APRIL BOYLES JACKSON AND REQUEST FOR SANCTIONS IN THE
10/28/2013: PLAINTIFFS? EX PARTE APPLICATION FOR AN ORDER PERMITINC PLAINTIFFS THE OPTION TO FILE ONE CONSOLIDATED REPLY BRIEF UP TO 30 PAGES (INSTEAD OF FIVE REPLY BRIEFS EACH UP TO 15 PAGES) DECL. OF ALLAN A. S
2/5/2014: ALLSTATE INSURANCE COMPANY?S SUPPLEMENTAL OPPOSITION TO PLAINTIFFS? MOTION FOR CLASS CERTIFICATION
2/13/2014: CLASS ACTION RESPONSE TO DEFENDANT CIS GROUP LLC?S OBJECTIONS TO DR. JON KROSNICK?S DECLARATION ETC
6/22/2016: DEFENDANT CAPITAL PERSONNEL SERVICES, INC.'S ANSWER TO PLAINTIFFS' FOURTH AMENDED COMPLAINT
10/4/2017: CASE MANAGEMENT STATEMENT -
Hearing12/21/2020 at 14:00 PM in Department 49 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary JudgmentRead MoreRead Less
Hearing12/21/2020 at 14:00 PM in Department 49 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to BifurcateRead MoreRead Less
Hearing12/21/2020 at 14:00 PM in Department 49 at 111 North Hill Street, Los Angeles, CA 90012; Status ConferenceRead MoreRead Less
Docketat 3:13 PM in Department 49; Nunc Pro Tunc OrderRead MoreRead Less
DocketMinute Order ( (Nunc Pro Tunc Order)); Filed by ClerkRead MoreRead Less
Docketat 2:00 PM in Department 49; Hearing on Motion - Other ((RESERVED); AND a Status Conference) - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 08:31 AM in Department 49; Hearing on Motion to Compel Further Discovery Responses - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 08:31 AM in Department 49; Hearing on Motion to Compel Further Discovery Responses - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 08:31 AM in Department 49; Hearing on Motion to Compel Further Discovery Responses - Not Held - Advanced and VacatedRead MoreRead Less
Docketat 08:31 AM in Department 49; Hearing on Motion to Compel Discovery (not "Further Discovery") - Not Held - Advanced and VacatedRead MoreRead Less
DocketFirst Amended Complaint; Filed by Timothy McCleery (Plaintiff)Read MoreRead Less
DocketFIRST AMENDED COMPLAINT FOR: 1. UNPAID WAGES; ETC.Read MoreRead Less
DocketObjection Document; Filed by Plaintiff/PetitionerRead MoreRead Less
Docketat 08:30 AM in Department 311; Court Order (Court Order; Court makes order) -Read MoreRead Less
DocketMinute order entered: 2009-04-15 00:00:00; Filed by ClerkRead MoreRead Less
DocketSummons; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketAMENDED SUMMONSRead MoreRead Less
DocketCOMPLAINT FOR: 1. UNPAID WAGES; ETC.Read MoreRead Less
DocketComplaint; Filed by Timothy McCleery (Plaintiff); Terry Quimby (Plaintiff); Yvonne Beckner (Plaintiff) et al.Read MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC410865 Hearing Date: January 05, 2021 Dept: 49
Superior Court of California
County of Los Angeles
Timothy McCleery, et al.
Allstate Insurance Company, et al.
Hearing Date: January 5, 2021
Department 49, Judge Stuart M. Rice
Defendant Farmers Group Inc.’s Motion for Summary Judgment
Moving Party: Defendant Farmers Group Inc.
Responding Party: Plaintiffs Timothy McCleery, Yvonne Beckner, Terry Quimby, and April Boyles Jackson
Ruling: Defendant’s Motion for Summary Judgment is granted.
Defendant Farmers Group Inc. (“Defendant”) moves for summary judgment of Plaintiffs’ claims.
Defendant’s Evidentiary Objections
Only Defendant filed evidentiary objections; the court received none from Plaintiffs.
Declaration of Stephen M. Bernardo
Objections 1-11 are overruled.
Objection 12 is sustained for lack of personal knowledge and foundation.
Declaration of Yvonne Beckner (Exhibit A to Bernardo’s Declaration)
Objection 13-22 are overruled
Objection 23 is sustained for hearsay.
Objections 24-29 are overruled.
Objection 30 is sustained for hearsay.
Objection 31 is overruled.
Objections 32-34 are sustained for hearsay.
Objection 35 is overruled.
Objection 36 is sustained for lack of foundation.
Objections 37-49 overruled.
Objections 50-63 are overruled.
Objection 64 is sustained for hearsay.
Objections 65-79 are overruled.
Declaration of Tim McCleery
Objection 79 is sustained for hearsay.
Objections 80-81 are overruled.
Objections 82-83 are sustained for hearsay.
Objection 84 is overruled.
Objection 85 is sustained for lack of foundation.
Objections 86-90 are overruled.
Objections 91-93 are sustained for hearsay.
Objection 94 is overruled.
Objection 95 is sustained for hearsay.
Objections 96-100 are overruled.
Objection 101 is sustained for hearsay.
Objection 102 is overruled.
Objection 103 is sustained for hearsay.
Objection 104 is overruled.
Objection 105 is sustained for hearsay.
Objections 106-117 are overruled.
Declaration of Terry Quimby
Objection 118 is sustained for hearsay.
Objection 119 is overruled.
Objection 120 is sustained for hearsay.
Objections 121-122 are overruled.
Objection 123 is sustained for hearsay.
Objection 124 is overruled.
Objections 125-140 are overruled.
Plaintiffs are property inspectors who filed this putative class action on April 1, 2009 against Allstate Insurance Company, Farmers Group, Inc., CIS Group, LLC, North American Compass Insurance Services Group, LLC (CIS), and Capital Personnel Services, Inc. (PMG), Advanced Field Services, Inc. (AFS). Plaintiffs’ operative complaint alleges causes of action for (1) unpaid overtime compensation, (2) failure to pay minimum wage, (3) failure to furnish timely and accurate wage statements, (4) failure to reimburse employee expenses, (5) imposition of constructive trust, (6) unjust enrichment, and (7) unfair business practices.
The court has twice denied class certification, which plaintiffs appealed on both occasions, the most recent appeal resulting in a published opinion affirming the trial court’s order denying the motion for class certification. (See McCleery v. Allstate Ins. Co. (2019) 37 Cal.App.5th 434.) Thus, as it stands, the individual plaintiffs named in the operative complaint are prosecuting this action solely on their own behalf. Plaintiffs are Timothy McCleery, Terry Quimby, Yvonne Beckner, and April Boyles Jackson.
Plaintiffs Terry Quimby, Yvonne Beckner, April Jackson each allege that while employed by CIS, they conducted inspections for Farmers, during which inspections they were employed by Farmers in addition to CIS. (Fourth Amended Complaint (4AC), ¶¶ 2-5.) Plaintiffs also allege that Farmers used AFS and CIS (the former acquired by the latter in 2008) as “straw men” employers through which it employed plaintiffs. (4AC, ¶ 16.) Plaintiffs claim that “defendants” required plaintiffs “to form fictitious business entities as part of defendants’ scheme to mischaracterize plaintiffs as independent contractors . . . [while] continu[ing] to maintain control of plaintiffs’ wages, hours or working condition.” (4AC, ¶ 47 [internal capitalization omitted].) Plaintiffs also allege that defendants did not compensate them for overtime, pay minimum wages, reimburse plaintiffs for expenses necessarily incurred in connection with their work as property inspectors, and failed to furnish accurate wage statements.
This motion was initially scheduled to be heard on March 16, 2020. Due to plaintiffs’ opposing separate statement not being in full compliance with the requirements set forth in the California Rules of Court, the hearing was trailed to March 19, 2020 to allow plaintiffs the opportunity to file a revised separate statement. However, because of court closure due to the COVID-19 pandemic, the hearing on this motion was vacated, and ultimately rescheduled for this date.
The court received Plaintiffs’ amended separate statement on March 17, 2020. Despite being given the opportunity to revise their separate statement to comply strictly with the California Rules of Court, plaintiffs “corrected” separate statement still falls short, as it fails in various instances to include reference to the exhibit that contains the evidence cited, and instead merely includes the title of the document and the page and line numbers (see, e.g., Plaintiffs’ Additional Material Fact (AMF) 23). (See Cal. Rules of Court, Rule 3.1350(f)(2)-(3) [citation to the evidence in support of the position that a fact is controverted, or in support of an additional material fact, must include reference to the exhibit, title, page, and line numbers].)
Farmers also failed in many instances to cite the exhibits (or even the volume of exhibits) in which the evidence referred to is contained, despite having submitted three large volumes comprising its compendium of exhibits in support of its motion. The parties’ failure to fully comply with the rules, which are designed to facilitate the court’s efficient review of motions for summary judgment, has required the court to spend additional time evaluating what was already a complicated motion. Nonetheless, to avoid further delay, the court has considered all evidence and arguments made by both parties in preparing the ruling set forth below.
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
“A defendant...has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there as a complete defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)
Once the movant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or defense. (Code Civ. Proc. § 437c, subd. (p)(2).) The opposing party “may not rely upon the mere allegations or denials of its pleadings,” but rather “shall set forth the specific facts showing that a triable issue of material fact exists.” (Id.)
Motion for Summary Judgment or Adjudication
Farmers moves for summary judgment or adjudication of plaintiffs’ complaint, and the causes of action therein for: (1) unpaid overtime compensation, (2) failure to pay minimum wage (Labor Code section 1194), (3) failure to furnish timely and accurate wage statements (Labor Code section 226), (4) failure to reimburse employee expenses (Labor Code section 2802), (5) imposition of constructive trust, (6) unjust enrichment, and (7) violation of the Unfair Competition Law (Business and Professions Code section 17200, et seq.)
Farmers’ motion is based in part on its contention that there is no triable issue of material fact as to whether plaintiffs had an employment relationship with Farmers, which is a prerequisite for plaintiffs to prevail on their claims. In opposition to Farmers’s motion, plaintiffs argue that there is a triable issue of material fact as to whether Farmers was plaintiffs’ joint employer. Because the employment relationship is dispositive as to each cause of action in plaintiffs’ complaint, the court addresses this issue exclusively.
The question posed in joint employer claims is whether “another business or entity that has some relationship with the primary employer should properly be considered a joint employer of the worker and therefore also responsible, along with the primary employer, for the obligations imposed by the wage order.” (Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, 1129, citing Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, 915.)
“To employ,” under the applicable IWC, “has three alternative definitions. It means: (a) to exercise control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to engage, thereby creating a common law relationship.” (Martinez v. Combs (2010) 49 Cal.4th 35, 64.)
As a preliminary matter, the ABC test set forth in Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903, and codified in Labor Code section 2750.3, which is directed toward the issue of whether employees were misclassified as independent contractors, does not apply in joint employment cases. (Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289, 314 [placing the burden on the employer to prove that a worker is not an employee is meant to serve policy goals that are not relevant in the joint employer context]; Henderson v. Equilon Enterprises (2019) 40 Cal.App.5th 1111, 1128-1129 [discussing how parts B and C of the ABC test do not fit analytically with joint employer claims].)
The Court recognizes that plaintiffs contend AFS and CIS misclassified them as independent contractors rather than employees such that the facts at issue here do not fit cleanly into the framework for analyzing joint employment. (See Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289, 314 [“[i]n the joint employment context, the alleged employee is already considered an employee of the primary employer; the issue is whether the employee is also an employee of the alleged secondary employer”].) Nonetheless, because joint employment is the sole theory plaintiffs rely upon in their opposition, the framework set forth in Martinez—and not the ABC analysis—applies to plaintiffs’ claims. (See Henderson, at p. 1128 [“we see no reason to depart from the well-established framework for analyzing the joint employment relationship under Martinez”].)
Control Over Wages, Hours, or Working Conditions
One definition of employment is “control over the wages, hours, or working conditions.” (Martinez v. Combs (2010) 49 Cal.4th 35, 64.) This definition “is broad enough to reach through straw men and other sham arrangements to impose liability for wages on the actual employer.” (Id. at 71.) Phrased in the alternative (i.e., with the use of “or”), “the language of the IWC’s ‘employer’ definition has the obvious utility of reaching situations in which multiple entities control different aspects of the employment relationship, as when one entity, which hires and pays workers, places them with other entities that supervise the work.” (Martinez, 49 Cal.4th at p. 59.)“[C]ontrol over wages” means that a person or entity has the power or authority to negotiate and set an employee’s rate of pay, and not that a person or entity is physically involved in the preparation of an employee’s paycheck.” (Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1432.)
“Supervision of the work, in the specific sense of exercising control over how services are performed, is properly viewed as one of the ‘working conditions’ mentioned in the wage order. To read the wage order in this way makes it consistent with other areas of the law, in which control over how services are performed is an important, perhaps even the principal, test for the existence of an employment relationship.” (Martinez v. Combs (2010) 49 Cal.4th 35, 76.)
“When one person is performing work in which another is beneficially interested, the latter is permitted to exercise a certain measure of control for a definite and restricted purpose without incurring the responsibilities or acquiring the immunities of a master, with respect to the person controlled. [Citation.] Even one who is interested primarily in the result to be accomplished by certain work is ordinarily permitted to retain some interest in the manner in which the work is done without rendering himself subject to eh peculiar liabilities which are imposed by law upon an employer.” (Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 432, quoting Bohanon v. James McClatchy Pub. Co. (1936) 16 Cal.App.2d 188, 199.)
For example, in Martinez, seasonal farmworkers who harvested strawberries sued the their direct employer, farm owner Munoz & Sons, as well as the produce merchants through whom Munoz sold strawberries, Apio, Inc. and Combs Distribution Co,. to recover unpaid minimum wages under Labor Code section 1194. (Id. at pp. 42-43.) The court rejected plaintiffs’ claims that the produce merchants were plaintiffs’ joint employer along with Munoz because although the evidence indicated that Apio’s and Combs’s field representatives spoke with Munoz’s employees about the manner in which strawberries were to be packed and would sometimes point out mistakes directly to the workers, these interactions were insufficient to establish that the merchants supervised or exercised control over the employees. (Id. at p. 76.) Further, no evidence suggested that the farm workers viewed the merchants’ field representatives as their supervisors, and the farmer’s contracts with the produce merchants gave them no right to direct the farmer’s employees. (Id. at p. 76-77.)
Here, Farmers has proffered evidence showing that it had no role in assigning property inspections to inspectors such as plaintiffs or assigning inspectors to a territory. (Farmers’s Separate Statement of Undisputed Facts (UMF) 14, 24.) Further, Farmers did not impose time constraints on when the inspections had to be completed so long as CIS completed them within 35 days. (UMF 15.) The determination of the amount the inspectors would be paid for their work was left to negotiations between CIS and the inspectors. (UMF 13.) It is undisputed that Farmers neither negotiated the amount of pay the inspectors received nor paid the inspectors. (UMF 26, 27.) Farmers has met its initial burden of showing that none of plaintiffs’ claims against it has any merit because plaintiffs cannot establish that Farmers controlled their wages, hours, or working conditions to qualify as plaintiffs’ employer with the meaning of the IWC.
Thus, the burden shifts to plaintiffs to raise a triable issue of material fact as to whether Farmers was plaintiffs’ employer by controlling plaintiffs’ wages, hours, or working conditions. Plaintiff purports to dispute whether Farmers had a role in assigning property inspections to the individual inspectors and that Farmers maintained control over the inspectors by providing evidence showing that Farmers ordered inspection requests and received the inspection results using a computerized system called “Navigator,” and created guidelines so that the inspectors would collect the information that Farmers needed for each property. (Opposition to Farmers’s Separate Statement of Undisputed Facts (OUMF) 14, 24; AMF 13.) This evidence does not raise a dispute as to whether Farmers had any role in assigning property inspections to plaintiffs. Further, it does not lend itself to plaintiffs’ position that Farmers’s controlled plaintiffs’ wages, hours, or working conditions. (See Martinez v. Combs (2010) 49 Cal.4th 35, 76 [produce merchants’ field representatives’ direct communication with the farmer’s employees about the manner in which strawberries were to be packed and about any mistakes that were made was insufficient to establish that produce merchants exercised control over farmworkers].)
Plaintiffs also purport to raise a dispute as to whether Farmers imposed time constraints beyond requiring the completion of inspections within 35 days. To raise such a dispute, plaintiffs refer to evidence that either shows that AFS and CIS gave plaintiffs deadlines to complete inspections or leaves it ambiguous as to who provided the deadlines or pressured plaintiffs to complete inspections quickly by structuring sentences in the passive tense, e.g., “I was usually put under pressure to get the inspections completed as quickly as possible.” (Declaration of Yvonne Beckner, ¶ 51)). (OUMF 15.) This evidence does not aid plaintiffs in raising a dispute as to whether Farmers controlled plaintiffs’ hours or working conditions. (See Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289, 303 [“Curry’s argument reflects Shell exercised Control over ARS, and, in turn, ARS exercised control over Curry, but Curry has not explained how Shell exercised control over Curry’s wages, hours, or working conditions”].)
To raise a dispute as to whether Farmers controlled plaintiffs’ wages, plaintiffs misquote paragraph 17 of the documents entitled “National Property Inspection Agreement,” which is attached as exhibit S to Stephen M. Bernardo’s declaration. (See OUMF 13.) Plaintiffs quote that paragraph in their corrected opposing separate statement as follows: “[t]he master contract gave Farmers the ‘right to inspect and [audit] verify amounts payable by CIS to’ inspectors.” (OUMF 13.) However, the quoted sentence referred to in paragraph 17 of the document actually provides, “Farmers shall maintain the right to inspect and audit such portions of books and records as is necessary for purpose of verifying amounts payable to CIS or its subcontractors.” (Bernardo Decl., Exhibit S, ¶ 17, emphases added.) Thus, the authority to verify, inspect, and audit that Farmers maintained in the master contract was regarding what Farmers owed CIS, not what CIS owed plaintiffs. (Id.).
The evidence cited does not support plaintiffs’ contention that Farmers controlled their wages because it fails to raise a triable issue of material fact as to whether Farmers had the power to negotiate or set plaintiffs’ wages. (See Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1432.) Further, plaintiffs do not even purport to dispute Farmers’s UMF 26 or 27, which together provide that Farmers neither paid property inspectors nor negotiated the pay that the inspectors received. (See OUMF 26-27 [both contain “Undisputed” in the right column].)
Plaintiffs have failed to raise a triable issue of material fact as to whether Farmers meets the “control over wages, hours, or working conditions” definition of employer under Martinez.
Suffer or Permit to Work
The basis of liability under the “to suffer or permit to work” definition in the IWC is “the defendant’s knowledge of and failure to prevent the work from occurring.” (Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, 1118, citing Martinez, 49 Cal.4th at p. 70.) “The verbs ‘to suffer’ and ‘to permit,’ . . . are terms of art in employment law.” (Martinez v. Combs (2010) 49 Cal.4th 35, 64.) The IWC borrowed its definition of “employ”—“to engage, suffer, or permit to work”—in 1916 from the language of early 20th-century statutes prohibiting child labor. (Martinez, 49 Cal.4th at 69.)
“Statutes so phrased were generally understood to impose liability on the proprietor of a business who knew child labor was occurring in the enterprise but failed to prevent it, despite the absence of a common law employment relationship.” (Id.; see also Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1432 [holding there was no evidence that Payday allowed Futrell to suffer or permit him to work because there was no evidence showing Payday had power to cause him to work or prevent him from working].)
Benefitting from one’s labor is “neither a necessary nor a sufficient condition for liability under the ‘suffer or permit’ standard. Instead . . . the basis of liability is the defendant’s knowledge of and failure to prevent the work from occurring.” (Martinez, 49 Cal.4th at p. 70.) In Martinez, the court found no employment relationship because while the produce merchants were aware that the farmer used laborers to satisfy his contracts, the produce merchants had no authority to prevent such work from occurring. (Martinez, 49 Cal.4th at p. 70 [“Munoz and his foremen had the exclusive power to hire and fire his workers, to set their wages and hours, and to tell them when and where to report to work].)
Here, the contract between Farmers and CIS explicitly states, “Farmers shall not have any authority hereunder to cause CIS to terminate CIS’s employment of any inspector.” (UMF 17.) Further, Farmers did not review employment applications, interview, hire, or maintain any employment records for the inspectors CIS retained. (UMF 21-23.) Nor did Farmers discipline the inspectors. (UMF 34.) Farmers has met its initial burden of showing that plaintiffs cannot demonstrate that it suffered or permitted plaintiffs to work to qualify as their employer.
Therefore, the burden shifts to plaintiffs to raise a triable issue of material fact as to whether Farmers suffered or permitted plaintiffs to work. In support of the existence of a dispute as to whether Farmers had the right to terminate plaintiffs, plaintiffs cite evidence showing that Farmers retained the authority to deny permission for a property inspector to perform inspections for Farmers. (OUMF 18, 22; AMF 86.) The evidence cited is the document entitled “National Property Inspection Agreement” (master contract), included as plaintiffs’ exhibit Q. It provides, in relevant part: “Farmers, at its sole and absolute discretion, may disqualify any individual Inspector from providing Services hereunder, provided, however, that before exercising such right Farmers shall notify AFS of its intention to do so and, upon request by AFS, Farmers agrees to meet and confer with AFS for the purpose of explaining Farmers’ reasons for such disqualification. Farmers shall not have any authority hereunder to cause AFS to terminate AFS’s employment of any Inspector.” (Plaintiffs’ Exhibit Q, Master Contract at ¶ 13.)
Farmer’s right to “disqualify” cannot be synonymous with a right to discharge when the subsequent sentence in the master contract provides that Farmers lacks any authority to terminate inspectors. (See Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, 1121-1122 [agreeing with the trial court’s evaluation of a similar provision that “[r]emoval cannot be synonymous with discharge when the subsequent sentence [in the MSO Agreement] provides that Shell ‘shall not select, hire, discharge . . . or instruct any of [Danville]’s employees’”].)
Plaintiffs have failed to raise a triable issue of material fact as to whether Farmers employed them under the “suffer or permit” definition of employment.
Common Law Employment Relationship
“[T]he IWC’s definition of employment incorporates the common law definition as one alternative.” (Martinez v. Combs (2010) 49 Cal.4th 35, 64.) “Under the common law, the principal test of an employment relationship is whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” (Ayala v. Antelope Valley Newspapers, Inc. (2014) 59 Cal.4th 522, 531, citing S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello), internal punctuations omitted.)
“What matters is whether the hirer ‘retains all necessary control’ over its operations.” (Ayala, at p. 531, citing Borello, at p. 357.) “Perhaps the strongest evidence of the right to control is whether the hirer can discharge the worker without cause, because ‘[t]he power of the principal to terminate the services of the agent gives him the means of controlling the agent’s activities.’” (Ayala, at p. 531.) “Significantly, what matters under the common law is not how much control a hirer exercises, but how much control the hirer retains the right to exercise.” (Id. at 533.)
Although the right to control is the foremost consideration in assessing whether a common law employer-employee relationship exists, precedents also recognize a range of secondary indicia that may in some cases evince an employment relationship. (Borello., at p. 532.) These factors include “(a) whether the one performing services is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by the time or by the job; (g) whether or not the work is part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. (Ayala, at p. 531, citing Borello, at p. 351.) Even if one or two of these factors might suggest an employment relationship, summary judgment is nevertheless proper when all the factors weighed and considered as a whole establish that the plaintiff was an independent contractor and not an employee. (See Arnold v. Mutual of Omaha Ins. Co. (2011) 202 Cal.App.4th 580, 590.)
At all relevant times, plaintiffs have been engaged in the distinct occupation of property inspectors. Plaintiffs do not support their arguments to the contrary with any persuasive authority. It is undisputed that Farmers did not provide the inspectors with uniforms to perform inspections on its behslf. (UMF 28-29.) Farmers is not a business that conducts property inspections. (UMF 2.) Farmers has submitted evidence showing that it did not train or supervise the property inspectors. (UMF 30-31.) Further, when Farmers received a complaint about a property inspection, it addressed the issue with management at CIS, not with the property inspector. (UMF 33.) Farmers did not pay or negotiate the pay of inspectors. (UMF 221-222.) Farmers did not provide the tools to property inspectors to perform inspections. (UMF 224.) Nor did Farmers train or supervise property inspectors. (UMF 225-226.) Farmers has met its initial burden of showing that it did not employ plaintiffs within the common law meaning of employment.
Plaintiffs thus face the burden of raising a triable issue of material fact as to whether Farmers meets the common law definition of an employer. For the same reasons discussed above, plaintiffs have failed to establish a triable issue of material fact as to whether Farmers supervised them. Further, plaintiffs have failed to raise a dispute as to whether Farmers is engaged in the business of providing property inspections. (OUMF 2.) It is also undisputed that plaintiffs did not consider themselves employees of Farmers. (OUMF 171, 280, 381.) Plaintiffs concede that they were paid a piece rate for each inspection they performed. (OUMF 202.) It is undisputed that CIS, not Farmers, paid property inspectors and negotiated the pay that the inspectors received. (See OUMF 26-27.) Considering the foregoing, plaintiffs have failed to raise a triable issue of material fact as to whether a common law employment relationship existed between Farmers and plaintiffs.
Therefore, plaintiffs have failed to raise a triable issue of material fact as to whether Farmers was plaintiffs’ joint employer. Because all of plaintiffs’ claims are premised on the existence of an employment relationship, Farmers’ motion for summary judgment is granted. Farmers is ordered to file a proposed order and judgment consistent with this ruling and to give notice.
Date: January 5, 2021
Honorable Stuart M. Rice
Judge of the Superior Court
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