Case Number: 18STCV06219 Hearing Date: February 28, 2020 Dept: 32

M. ESTRADA, et. al.

Plaintiffs,

v.

SCARS OF THE MIND PICTURE COMPANY, LLC, et. al.

Defendants.

Case No.: 18STCV06219

Hearing Date: February 28, 2020

[TENTATIVE] order RE:

PLAINTIFFS’ Motion for Summary ADJUDICATION

BACKGROUND

Plaintiffs M. Estrada, J. Stout, and P. Stout (collectively, “Plaintiffs”) commenced this action against Defendants Scars of the Mind Picture Company, LLC (“Scars”); Leslie Bates (“Bates”); and Vince Lozano (“Lozano”) (collectively, “Defendants”) on November 27, 2018. The Complaint asserts causes of action for (1) violation of Labor Code section 203 – Continuing Wages, (2) violation of Labor Code section 203.1 – Wages by Check on Which Payment Refused, (3) violation of Labor Code sections 510 and 1194 – Failure to Pay Minimum Wage and Overtime, (4) violation of Labor Code section 226(a) – Failure to Provide Pay Stubs, (5) violation of the Unfair Competition Law, (6) violation of Labor Code section 226(b) – Failure to Provide Employment Records, (7) violation of Labor Code section 1198.5 – Failure to Provide Employment Records, and (8) violation of the aforementioned Labor Codes under PAGA. Plaintiffs allege that Defendants employed Plaintiffs as crew members to assist in the creation of a motion picture. Plaintiffs allege that Defendants have failed to properly compensate Plaintiffs and other persons for services performed for the production of the motion picture.

LEGAL STANDARD

CCP section 437c(c) states: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” A material fact is one that “must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way.” (Riverside County Community Facilities District v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653.) The court may not weigh the evidence. (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 39.) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. (CCP § 437c(f)(2).) The moving party bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, and if he does so, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.)

DISCUSSION[1]

Plaintiffs move for summary adjudication of the Complaint’s first, second, and fourth causes of action.

Plaintiffs’ first cause of action is for violation of Labor Code section 201.5. Plaintiffs allege that Defendants violated this statute by failing to timely pay wages to Plaintiffs. (Compl. ¶¶ 38-40.) Plaintiffs’ second cause of action is for violation of Labor Code section 203.1. Plaintiffs allege that Defendants violated this statute by paying Plaintiffs with bad checks. (Compl. ¶¶ 42-44.) Plaintiffs’ fourth cause of action is for violation of Labor Code section 226(a). Plaintiffs allege that Defendants violated this statute by failing to provide Plaintiffs with proper wage statements. (Compl. ¶¶ 49-50.)

All three causes of action rest on the existence of an employment relationship between Plaintiffs and Defendants. The existence of this relationship is disputed. Plaintiffs claim that they are employees under the ABC test adopted by the California Supreme Court in Dynamex Operations W. v. Superior Court (2018) 4 Cal.5th 903. Defendants claim that Plaintiffs are not employees under the ABC test adopted in Dynamex or the common law test set forth in S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.

A. Which Employment Test Applies?

Before addressing the merits of this motion, the Court must first determine whether the ABC test, common law test, or some combination of the two applies to determining whether Plaintiffs were employees for purposes of the three causes of action at issue. Neither party provides briefing on this issue.

The Court finds the recent case, Gonzales v. San Gabriel Transit, Inc. (2019) 40 Cal.App.5th 1131, instructive. There, the Court of Appeal held that “the ABC test applies to Labor Code claims which are either rooted in one or more wage orders, or predicated on conduct alleged to have violated a wage order. As to Labor Code claims that are not either rooted in one or more wage orders, or predicated on conduct alleged to have violated a wage order, the Borello test remains appropriate.” (Gonzalez, supra, 40 Cal.App.5th at 1157.) Pursuant to this conclusion, the Gonzalez court found that several claims brought by the putative employee were subject to the ABC test, including claims for failure to pay minimum wages, provide meal or rest periods, and supply accurate wage statements and records of hours. (Ibid.)

Plaintiffs have brought claims based on Defendants’ alleged failure to (1) timely pay wages (Lab. Code § 201.5), (2) furnish adequate checks (Lab. Code § 203.1), and (3) provide accurate wage statements (Lab. Code § 226). Gonzalez dictates that Plaintiffs’ third cause of action is subject to the ABC test. (See IWC Wage Order #12, § 7 (“Every employer shall semimonthly or at the time of each payment of wages furnish each employee, either as a detachable part of the check, draft, or voucher paying the employee’s wages, or separately, an itemized statement in writing….”).) In the Court’s view, Gonzalez also supports application of the ABC test to Plaintiff’s first cause of action for failure to timely pay wages. Section 4 of IWC Wage Order No. 12 states that “[e]very employer shall pay to each employee, on the established payday for the period involved, not less than the applicable minimum wage for all hours worked in the payroll period….” Like Labor Code section 201.5, this provision’s purpose is to ensure that employees are timely paid wages for work performed. Given this overlapping function, application of the same employment test is warranted.

Conversely, the Court sees no protections in IWC Wage Order #12 for the issuance of bad checks to employees. This is a narrow protection which appears to be exclusively provided by Labor Code section 203.1. The Court will therefore apply the Borello test to Plaintiffs’ second cause of action.

B. ABC Test

Under the ABC test, a worker is presumed to be an employee unless the hiring entity establishes each of the test’s three prongs. (Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558, 569; see also Dynamex, supra, 4 Cal.5th at 964.) Those three prongs are: (A) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) that the worker performs work that is outside the usual course of the hiring entity’s business; and (C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. (Dynamex, supra, 4 Cal.5th at 916-17.) Whether a prong is adequately met is a question for the trier of fact that can be decided by the court as a matter of law if the evidence supports only one conclusion. (See Beaumont-Jacques v. Farmers Group, Inc. (2013) 217 Cal.App.4th 1138, 1143.)

1. First Prong

The first prong requires the hiring entity to establish that “the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact.” (Dynamex, supra, 4 Cal.5th at 916.) This prong involves Borello’s common law “control” test, recognizing that “a business need not control the precise manner or details of the work in order to have maintained the necessary control” for an employer-employee relationship. (Garcia, supra, 28 Cal.App.5th at 569.) The focus is on whether the worker is subject to the “type and degree of control a business typically exercises over employees.” (Dynamex, supra, 4 Cal.5th at 958.)

In support of this prong, each of the Plaintiffs submits a declaration. According to Plaintiffs, Defendants told them where they would work and when they would work. (Estrada Decl. ¶ 10; J. Stout ¶ 6; P. Stout ¶ 6.) Plaintiffs aver that Defendants provided “the vast majority of the equipment” used on site, including a radio to communicate with other crewmembers during the filming. (Estrada Decl. ¶¶ 10-11; J. Stout ¶¶ 6-7; P. Stout ¶¶ 6-7.)

Defendants supply conflicting evidence. Defendant Bates was a Scars’ line producer and Lozano was a Scars’ producer for the production on which Plaintiffs worked. (Bates Decl. ¶ 2; Lozano Decl. ¶ 2.) Bates and Lozano declare that Plaintiffs are full-time Los Angeles City police officers hired through a third party to provide traffic control services for the shoot as required by the City of Los Angeles. (Bates Decl. ¶¶ 6, 8; Lozano Decl. ¶ 4.) Defendants did not interview, select, or have any involvement in the assignment of the Plaintiffs. (Lozano Decl. ¶ 4.) When on-site, Defendants did not supervise Plaintiffs. (Bates Decl. ¶¶ 9, 16; Lozano Decl. ¶ 8.) Rather, Plaintiffs worked independently to supervise the production’s use of the city’s streets. (Ibid.) Plaintiffs wore the uniform of the Los Angeles Police Department and their own side arms. (Bates Decl. ¶¶ 10, 16; Lozano Decl. ¶ 8.) Plaintiffs set their own rate of pay, available hours, break time, and related matters. (Bates Decl. ¶ 12.) Plaintiffs also filled out W-9 forms. (Bates Decl. ¶¶ 11, 17.)

Defendants’ conflicting evidence raises a triable issue of fact as to whether Plaintiffs were under Defendants’ control during the course of their work.

2. Second Prong

The second prong requires the hiring entity to establish that the worker performs work that is outside the usual course of the hiring entity’s business. (Dynamex, supra, 4 Cal.5th at 916-17.) “This inquiry turns on whether the worker is ‘reasonably viewed as providing services to the business in a role comparable to that of an employee, rather than in a role comparable to that of a traditional independent contractor.’ [Citation.] A plumber hired by a retail store would not be considered an employee; by contrast, a cake decorator servicing a bakery for custom cakes, or an at-home seamstress sewing dresses from patterns supplied by a clothing manufacturer, would.” (Garcia, supra, 28 Cal.App.5th at 569-70.)

Defendant Scars is a multi-member LLC engaged in the business of film production. (Harris Decl. Ex. 7.) According to Lozano, Scars does not employ police officers. (Lozano Decl. ¶ 9.) Location shoots are rare and police officers are required on few occasions. (Ibid.)

Defendants’ evidence is persuasive and logical — the coordination of traffic is not clearly within the usual course of business of a movie production company. This evidence establishes a triable issue of fact as to the second prong.

3. Third Prong

The third prong requires the hiring entity to establish that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. (Dynamex, supra, 4 Cal.5th at 916-17.) The inquiry is whether the worker fits the common conception of an independent contractor — “an individual who independently has made the decision to go into business for himself or herself” and “generally takes the usual steps to establish and promote his or her independent business — for example, through incorporation, licensure, advertisements, routine offerings to provide the services of the independent business to the public or to a number of potential customers, and the like.” (Garcia, supra, 28 Cal.App.5th at 573.) This prong “requires that the worker is engaged in an independent business, not that he or she could have become so engaged.” (Id. at 570.)

Plaintiffs claim that they served as crew members on the production of Defendants’ motion picture. (Estrada Decl. ¶ 3; J. Stout Decl. ¶ 3; P. Stout Decl. ¶ 3.) Plaintiffs provide no details in support of this claim. As noted ante, Defendants have shown that Plaintiffs are full-time LAPD officers. A police officer is, of course, an independently established occupation which requires specialized training. Police officers, of course, perform traffic coordination services. There is a triable issue of material fact as to whether Plaintiffs are customarily engaged in an independently established profession of the same nature as the work performed for Defendants.

4. Conclusion

Triable issues of material fact abound as to whether Defendants were Plaintiffs’ employees under the ABC test adopted in Dynamex.

C. Borello Test

The first prong of the ABC test involved the Borello common law test. As noted ante, Defendants have submitted substantial evidence showing that they did not control the means and manner of Plaintiffs’ work. A triable issue of material fact exists as to whether Defendants were Plaintiffs’ employers under the Borello common law test.

CONCLUSION

Plaintiffs’ motion for summary adjudication of the Complaint’s first, second, and fourth causes of action is DENIED.

[1] Defendants’ objections to the J. Stout and P. Stout Declarations are sustained as to Nos. 1, 6, and 7 and overruled as to the remainder. Defendants’ objections to the M. Estrada Declaration are sustained as to Nos. 1, 8, and 9 and overruled as to the remainder. Defendants’ objections to the Harris Declaration are sustained as to Nos. 1, 3, and 4 and overruled as to No. 2.

Plaintiffs’ objections to the Bates and Lozano Declarations are waived for failure to cite the material objected to verbatim. (CRC Rule. 3.1354(b)(3).) Assuming arguendo these objections were not deemed waived, the objections are overruled.