Case Number: BC621762 Hearing Date: April 27, 2018 Dept: 2

Motion for Summary Judgment, or in the alternative, Summary Adjudication by Defendants, Amazon.Com, Inc. and Amazon Logistics, Inc., filed on 11/17/17 is DENIED. Defendants have not met their burden of establishing they are entitled to judgment or adjudication of issues in their favor based on the material facts proffered, which are disputed. Cal Code Civil Procedure § 437c(p)(2).

Objections

Plaintiff’s objections to the Declaration of Richard Nyhan, the General Manager of NEA Delivery LLC, who is familiar with employee oversight and development, recruiting, ensuring fleet vehicles are up to date, and is privy to all contract negotiations and contractual relations between NEA and Amazon Logistics, Inc.

Sustain, ¶ 4 legal conclusion – whether Plaintiff was acting within the course and scope of

employment as an “employee.” This is an issue of fact for the trier of fact unless all the facts

are undisputed.

Sustain #6, legal conclusion. Whether the relationship is an agency relationship is an issue

of fact or law if the facts are undisputed.

Overrule all remaining objections.

Defendant’s objections to the deposition testimony of Richard Nyhan.

Overrule all objections. (1-10)

Defendant’s objections to the deposition of Mitch Kraus (independent witness). Overrule all

objections. #11.

Defendant’s objections to the Deposition testimony of Defendant Apostolos Maguliotis.

Overrule all objections. #12-#16.

DISCUSSION

Triable issues of fact remain regarding whether Plaintiff was an independent contractor or employee of Defendants. The parties do not dispute that the action arises from a fall by Plaintiff, Aaron Young, who was riding his bicycle on Montana Avenue in Santa Monica, CA at the time of the incident. UF 1

The parties dispute whether Defendant, Apostolous Maguliotis (“Maguliotis”), was an employee of the Amazon Defendants, (“collectively, “Amazon”).

Generally speaking, the employer of an independent contractor is not liable for the independent contractor’s negligence. Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 365. The nature of the parties’ relationship is ordinarily a question of fact unless only one inference can be drawn. Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079.

The most significant factor in determining the existence of an employer-independent contractor relationship is the right to control the manner and means by which the work is to be performed. Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 431.

“The most significant factor in determining the existence of an employer-independent contractor relationship is the right to control the manner and means by which the work is to be performed. [Citations.] ‘If control may be exercised only as to the result of the work and not the means by which it is accomplished, an independent contractor relationship is established.’ [Citations.]” Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425, 431.

Another significant factor considered is whether the purported employer has the ability to terminate the purported independent contractor. As Plaintiff’s authority demonstrates, “[N]o single circumstance is more conclusive to show the relationship of an employee than the right of the employer to end the service whenever he sees fit to do so.” Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1085

“A particular aspect of the right to control is the employer’s right to discharge at will. In Press Pub. Co. v. Industrial Acc. Com., supra., 190 Cal. 114, the court said: ‘This power of the employer to terminate the employment at any time is a strong circumstance tending to show the subserviency of the employee, since it is incompatible with the full control of the work usually enjoyed by an independent contractor. Perhaps no single circumstance is more conclusive to show the relationship of an employee than the right of the employer to end the service whenever he sees fit to do so.” Brose at 1085.

There is no dispute that NEA Delivery, LLC (“NEA”) entered into a contract with Amazon Logistics, Inc. to deliver packages from a central location for compensation at various distribution services throughout California. UF 9. The parties do not dispute that Defendant Maguliotis was a delivery driver for NEA. UF 14.

Whether NEA was the “exclusive” employer of its delivery drivers and had “exclusive” responsibility for its personnel is a triable issue of fact. Plaintiff’s evidence infers that Amazon had some control over the manner and means of the delivery driver’s work such as, staging a driver’s route, providing the driver with a handheld device called DORA which was pre-programmed by Amazon with the order of delivery for each driver. The driver enters information into the DORA upon completion of delivery, which information was entered into a propriety site owned by Amazon.

Amazon requires the use of DORA. The order of delivery is set by Amazon. The dispatcher that the drivers communicated with worked for Amazon.

Mr. Nyhan (the General Manager of NEA) testified that Amazon had the authority to require NEA to terminate a driver “if they’re in violation of a tier program that they have.” Opposition, Ex. 1, 83:13-22. Amazon develops the list of criteria, a 20- item bullet point of criteria that each driver is required to meet. This “tier program” is provided in writing to the drivers by Amazon. Id., 83:18 – 84:20.

Mr. Nyhan testified that Amazon can tell them (NEA) they don’t want certain drivers delivering on their behalf, and NEA’s exclusive business is Amazon. Id., 84:24 – 8. UF 10 remains disputed.

Whether NEA alone provided training is controverted as Amazon provided delivery rules, or otherwise instructed where to deliver packages without intruding on privacy. Fact 11 is disputed.

Whether NEA had used its own fleet of vehicles is disputed. An independent witness observed that the van involved in the accident had a magnetic sign on it that said “Amazon.” Facts 12 and 17 are disputed.

Fact 19 is not proved. Plaintiff objects to the evidence that Maguliotis was an employee acting within the course and scope of employment, which is a legal conclusion.

The question of whether Maguliotis can be considered an employee of Defendants is disputed. Fact 20 is controverted by the evidence cited by Plaintiff above.

Whether Defendant Maguliotis is an agent of Defendants is a triable issue of fact.

Civil Code § 2299. An agency is actual when the agent is really employed by the principal.

Civil Code § 2300. An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.

“Actual authority stems from conduct of the principal which causes the agent reasonably to believe that the principal has consented to the agent’s act; ostensible authority, from conduct of the principal which leads the third party reasonably to believe that the agent is authorized to bind the principal.” Mannion v. Campbell Soup Co. (1966) 243 Cal.App.2d 317, 320.

Plaintiff’s facts infer that a person could have reasonably believed that Maguliotis was an agent for Amazon. NEA’s drivers wore clothing bearing the Amazon logo while operating delivery vehicles. There is no way to differentiate between an NEA employee and an Amazon employee as they all wore the same Amazon logo. The boxes were delivered in an Amazon box. Consumers did not receive paperwork bearing NEA’s mark.

As discussed previously, the drivers’ delivery route and schedule were arranged by Amazon, and they were given Amazon devices to record their deliveries. Amazon could effect a driver’s termination. A driver was required to comply with Amazon’s bullet points. Fact 21 is disputed.

The cases on which Defendants rely are all factually distinguishable. Millsap v. Fed Express Corp (1991) 227 Cal.App.3d 425 did not involve the amount of involvement as Amazon does here in controlling the manner and means of delivery or termination.

Defendants’ Reply contends that an instruction to “be careful” or proof of delivery of a package are not sufficient to show an employer/employee relationship. Defendants rely on Millsap for this contention, which is factually distinguishable.

Moving party is ordered to give notice.