Case Number: BC572555 Hearing Date: May 24, 2018 Dept: 47

International Patients Network, Inc. v. Maissaa Mousa

MOTION FOR SUMMARY ADJUDICATION ON CROSS-COMPLAINT

MOVING PARTY: Cross-Defendant International Patients Network, Inc.

RESPONDING PARTY(S): Cross-Complainant Maissa Mousa

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

Defendant allegedly received a salary she did not earn and money for expenses she did not incur and has refused to repay the unearned portion.

Defendant filed a cross-complaint alleging that she was deceived into working for Cross-Defendants in violation of wage and hour laws and was subjected to sexual harassment by Cross-Defendant Tony Dow.

Cross-Defendant International Patients Network, Inc. moves for summary adjudication as to only the second cause of action to the first amended cross-complaint.

TENTATIVE RULING:

Cross-Defendant International Patients Network, Inc.’s motion for summary adjudication is GRANTED as to Issues No. 1 and, in the alternative, No. 2 re: the second cause of action.

DISCUSSION

Motion For Summary Adjudication

1. Issue No 1: “Cross-Complainant’s second cause of action for violation of California Labor Code §§ 510, et seq., 226.7 and 203.1 fails as a matter of law because these provisions do not apply to work performed entirely outside of the state of California.”

The second cause of action alleges that Cross-Defendant International Patients Network, Inc. violated Labor Code §§ 510, et seq., 226.7 and 203.1. 1AXC, ¶ 42. None of these Labor Code sections expressly apply to work performed outside of California. In this regard, the Court finds to be persuasive a federal district court decision cited by Defendant in its moving papers, relying on the presumption against extraterritorial application of California statutes, especially when the work at issue was performed in a foreign country:

California law contains a presumption against extraterritorial application of remedial statutes. As the California Supreme Court has put it:

Although a state may have the power to legislate concerning the rights and obligations of its citizens with regard to transactions occurring beyond its boundaries, the presumption is that it did not intend to give its statutes any extraterritorial effect. The intention to make the act operative, with respect to occurrences outside the state, will not be declared to exist unless such intention is clearly expressed or reasonably to be inferred ‘from the language of the act or from its purpose, subject matter or history.’

North Alaska Salmon Co. v. Pillsbury, 174 Cal. 1, 4, 162 P. 93 (1916), reaffirmed in Diamond Multimedia Sys., Inc. v. Superior Court, 19 Cal. 4th 1036, 1059, 80 Cal. Rptr. 2d 828, 968 P.2d 539 (1999).

On the basis of the undisputed facts and the unclear law on these issues, the Court finds (1) that the presumption against extraterritorial application of California wage and hour law applies here and (2) that Sarviss does not fall under the presumptive application of the IWC wage orders reserved for California “wage earners.” There is no “clear express[ion]” of extraterritorial application for California wage and hour laws. Although some provisions of the Labor Code appear to suggest that the Industrial Wage Commission’s orders extend only to employment occurring in California, see Cal. Labor Code §§ 1173 & 1193.5 (“in this state”), the Labor Code also more generally provides that the Department of Industrial Relations is charged with “foster[ing], promot[ing], and develop[ing] the welfare of the wage earners of California,” id. § 50.5. Even in light of this language, there is nothing in the statutory scheme itself that “explicitly defines or limits” the IWC’s authority. Tidewater Marine W., Inc. v. Bradshaw, 14 Cal. 4th 557, 577, 59 Cal. Rptr. 2d 186, 927 P.2d 296 (1996).

The language of the wage orders and Labor Code sections leaves the presumption against extraterritorial application unrebutted, and the California Supreme Court has not decided whether the Labor Code’s language or purpose impliedly suggests an intent to apply those laws to events occurring outside of California. In Tidewater, the California Supreme Court addressed whether California wage and hour law applied to California residents working in the Santa Barbara channel, including the issue of whether the Santa Barbara channel was part of California. It is perhaps undisputed here that “California employment laws implicitly extend to employment occurring within California’s state law boundaries.” 14 Cal. 4th at 565. With respect to employment outside the state’s territorial boundaries, the Tidewater court first pointed to worker’s compensation statutes in noting that “[i]n some circumstances state employment law explicitly governs employment outside the state’s territorial boundaries.” Id. at 577. Distinguishing explicit statutory language in the workmen’s compensation scheme from the language in the IWC wage orders, the court left open room for statutory intent to be clarified:

The Legislature may have similarly intended extraterritorial enforcement of IWC wage orders in limited circumstances, such as when California residents working for a California employer travel temporarily outside the state during the course of the normal workday but return to California at the end of the day. On the other hand, the Legislature may not have intended IWC wage orders to govern out-of-state businesses employing nonresidents, though the nonresident employees enter California temporarily during the course of the workday.

Id. at 577-78. Overall, the court noted that it was “not prepared, without more thorough briefing of the issues, to hold that IWC wage orders apply to all employment in California, and never to employment outside California.” Id. at 578. Likewise, the court “express[ed] no opinion as to whether the trial court can enjoin the application of IWC wage orders to crew members who work primarily outside California’s state law boundaries[.]” Id. at 579.

Though the Tidewater court suggested that there was nothing to overcome the presumption against extraterritorial application in the text and declined to directly address the issue, the court did explain that IWC wage orders presumptively apply to California wage earners. That is, though it did not decide the potential extraterritorial application of the IWC wage orders, the Tidewater court did find “California’s territorial boundaries . . . relevant to determining whether IWC wage orders apply.” Id. at 578. The court explained a potentially competing presumption: “[i]f an employee resides in California, receives pay in California, and works exclusively, or principally, in California, then that employee is a ‘wage earner of California’ and presumptively enjoys the protection of IWC regulations.” Id. at 578. The court then cited United Air Lines, Inc. v. Industrial Welfare Com., 211 Cal. App. 2d 729, 735, 748-749, 28 Cal. Rptr. 238 (1963), describing that case as “assum[ing] that IWC regulations apply to persons who are domiciled in California but work principally outside the state.” Tidewater, 14 Cal. 4th at 578. Because the Tidewater court found that the employees “reside[d] in California, receive[d] pay in California, and work[ed] in California,” the court found that they were “wage earners of California” who “presumptively enjoy[ed] the protections of IWC wage orders.” Id. at 578-79.

Sarviss does not clearly fall into this “wage earner of California” presumption. Unlike in Tidewater, the three elements that would entitle Sarviss to presumptive application of the wage orders are not met here: although it is undisputed that he is a California resident who presumably received his pay in California (as he paid California taxes), he performed the significant majority of his employment outside of California. That is, it is undisputed that Sarviss did the work he was contracted to do, and spent between eighty and ninety percent of his roughly 16 working weeks, outside of California. Indeed, this case is also not one for which the Tidewater court particularly contemplated extraterritorial application. See Tidewater, 14 Cal. 4th at 577-78. Rather, this case appears to fall between the two Tidewater presumptions – the presumption against application to events occurring outside of California, on the one hand, and the presumption that wage earners of California do fall under the purview of the IWC wage orders. Put simply, the law is unclear on this issue.

In Guy, the California Court of Appeal faced similar facts: one plaintiff was a resident of California but performed more than ninety percent of his work outside of California. 2004 Cal. App. Unpub. LEXIS 5757, 2004 WL 1354300 at *4. The court noted that the Tidewater court had expressly not addressed the applicability of the wage orders to a California resident who performed most of his work outside the state. Id. (citing Tidewater, 14 Cal. 4th at 579). Likewise, the Guy court avoided the “tough” issue by finding the application of the IWC wage order to that California resident barred by the dormant commerce clause. Id. at *4, *6-7.

The Court finds that the IWC wage orders do not apply to Sarviss in this case, even though he is a California resident. Rather, on the Court’s reading of the jurisprudence, the determinative issue is whether an employee principally works in California. Although the cases discussing the extraterritorial application of California’s wage and hour law are sparse, those decisions that do discuss it have tended to find that California wage and hour provisions do not apply to non-resident Californians who work primarily outside of California. See Priyanto v. M/S Amsterdam, et al., 2009 U.S. Dist. LEXIS 7849, 2009 WL 175739 (C.D. Cal. January 23, 2009) (Matz, J.); Tidenberg v. Bidz.com, 2009 U.S. Dist. LEXIS 21916, 2009 WL 605249 (C.D. Cal. March 4, 2009) (Gutierrez, J.). Plaintiff emphasizes resident status as reason enough why those cases are distinct. Based on the Court’s reading of the jurisprudence, however, the Court finds Judge Matz’s approach, which focuses on situs of the employee’s work, to be persuasive. Priyanto, 2009 U.S. Dist. LEXIS 7849, 2009 WL 175739 at *6-*8. Although California will still have an interest in the working conditions of its residents, that interest is perhaps weaker where the individual neither “works exclusively, [nor] principally, in California.” See Tidewater, 14 Cal. 4th at 558. The focus on situs of employment as opposed to residence of the employee or the employer is consistent with the decisions of California state courts and from courts in jurisdictions outside of California. See, e.g., Guillory v. Princess Cruise Lines, Ltd., 2007 Cal. App. Unpub. LEXIS 353, 2007 WL 102851 (Cal. Ct. App. 2007) (unpublished); Peikin v. Kimmel & Silverman, P.C., 576 F. Supp. 2d 654, 657 (D.N.J. 2008); see also Priyanto, 2009 U.S. Dist. LEXIS 7849, 2009 WL 175739 at *7-*8 (citing cases).

Tidewater’s citation to United Air Lines, Inc. v. IWC, 211 Cal. App. 2d 729, 28 Cal. Rptr. 238 (1963), does not change this analysis. As mentioned above, after noting that a wage earner is presumptively entitled to the protection of IWC Wage Orders, the Tidewater court used a “Cf.” cite to United Air Lines, and parenthetically described that case as “assum[ing] that IWC regulations apply to persons who are domiciled in California but work principally outside the state.” Tidewater, 14 Cal. 4th at 578. The Court does not read this fleeting citation to suggest that the IWC wage orders presumptively apply to California residents primarily or exclusively working elsewhere. The context makes unclear whether the Tidewater court approved of the “assumption,” but at least two facts suggest it did not: Tidewater expressly used a three-element definition of “wage earner” and Tidewater expressly left this precise issue open. Moreover, the Court notes that United Air Lines found such an application to be in violation of the dormant commerce clause.

In sum, because Sarviss indisputably spent the vast majority of his employment working outside of California – and, in fact, relocated to different states and a foreign country while outside of California – the Court finds that the IWC wage order does not presumptively apply to that employment and that the presumption against extraterritorial application of the wage orders has been left unrebutted.

Two additional issues further convince the Court that this holding is the appropriate one. First, in light of GDIT’s dormant commerce clause argument, the principles that favor the avoidance of constitutional issues support this holding. The doctrine of constitutional avoidance counsels that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, 108 S. Ct. 1392, 99 L. Ed. 2d 645 (1988). A court should invoke the doctrine only if it has “grave doubts about the constitutionality of [an application].” Ileto v. Glock, 565 F.3d 1126, 1143 (9th Cir. 2009). As defendants have cited at least two cases where courts have found a violation of the dormant commerce clause through the extraterritorial application of IWC wage orders in comparable situations, the Court notes that the Court’s interpretation avoids the potential dormant commerce clause issues that may arise from the application of California wage and hour law to a job that was performed almost entirely outside of California with team members from various states. Second, and relatedly, the Court notes that the majority of Sarviss’s service for GDIT took place not only outside of California, but in a foreign country, working alongside individuals from various states.

In addition, the Court is not convinced that the state policy in favor of the broad application of wage and hour law tips the result in favor of Sarviss here. Because he is a resident and because California law is unclear on whether the law applies extraterritorially, Sarviss argues, public policy that favors the broad application of wage and hour law should tip the balance against summary judgment. In light of the presumption against extraterritorial application, however, a lack of clarity in the law should side with that presumption. Additionally, it is not clear that broad policy goes to extraterritorial application of those laws at all, as opposed to construction of the law once it clearly applies. See Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1103, 56 Cal. Rptr. 3d 880, 155 P.3d 284 (2007). Plaintiff has cited no case to the former effect, and the Court has not independently found one.

Again, Sarviss does not claim overtime or missed meal and rest periods for any of the time employed by GDIT where he was located in California. Because California law does not apply to Sarviss’s claims for overtime and missed meal and rest periods, the Court grants summary judgment in favor of GDIT on those claims to the extent he brings them under California law.

Sarviss v. General Dynamics Info. Tech., Inc. (C.D.Cal. 2009) 663 F.Supp.2d 883, 897-901 (bold emphasis and underlining added).

“Unpublished federal district court decisions are citable and may be persuasive authority. (Aleman v. AirTouch Cellular (2012) 209 Cal.App.4th 556, 576, fn. 8 [146 Cal. Rptr. 3d 849].)” Akopyan v. Wells Fargo Home Mortgage, Inc. (2013) 215 Cal. App. 4th 120, 142 n.13. The Court finds the reasoning in Sarviss to be persuasive, and on that ground, finds that Defendant has presented sufficient evidence that the California Labor Code does not apply to the work performed by Plaintiff.

Defendant’s UF No. 2 is that Cross-Complainant Mousa provided caregiving services for Tony Dow, IPN President, for three-and-a-half weeks in Beirut, Lebanon. Dow Decl., ¶ 4; Mousa Depo. at 223:10-14, 342:17-22, 160:12-23, 247:11-13, 335:3-5, 347:16-23, 351:9-14, 405:24-407:1; Kantor Decl., ¶ 7, Exh. F and Exh. G. After Mousa traveled to Paris from Beirut, she returned to the United States on December 24, 2012 and voluntarily resigned that day. UF No. 7; Mousa Depo., 405:24-407:1, 342:1-22. Mousa performed no work for IPN or Tony Dow before Mousa departed for her trip to Lebanon, nor upon her return to the United States. UF No. 9. Mousa Depo. 342:17-22, 160:12-23, 350:2-25, 351:9-14, 405:24-407:1, 347:16-23; Dow Decl. ¶ 4; Kantor Decl., ¶ 7, Exh. F and Exh. G. Mousa did not perform any work for IPN or Tony Dow in California. UF No. 10; Mousa Depo., 342:17-22, 160:12-23, 247:11-13, 347:16-23, 351:9-14, 405:24-407:1; Dow Decl., ¶ 4; Kantor Decl., ¶ 7, Exh. F and Exh. G. Mousa’s alleged job duties began when she arrived in Lebanon on November 24, 2012 and ended when she left for France on or around December 18, 2012. UF No. 11; Mousa Depo., 342:17-22, 160:12-23, 247:11-13, 335:3-5, 347:16-23, 351:9-14, 405:24-407:1; Kantor Decl., ¶ 7, Exh. F And Exh. G.

The Court also notes that Def’s Exh. 1 is a November 4, 2012 Job Description, signed by Cross-Complainant Mousa, whereby she agrees as follows: “I agree to start my work with a trip that is estimated to be less than 10 weeks. . . . I understand that this is a temporary assignment for now and my work will start on the day of travel.” (Bold emphasis added.)

The foregoing evidence is sufficient to demonstrate that Cross-Complainant Mousa did not perform any work in California as an employee of Cross-Defendant IGN. In light of the unrebutted presumption against extraterritorial application of the Labor Code, Cross-Defendant IGN has met its initial burden of demonstrating that it is entitled to summary adjudication as to the second cause of action. The burden shifts to Cross-Complainant Mousa to cite admissible evidence sufficient to raise a triable issue of material facts.

In her opposing Separate Statement, Mousa claims that she started working for IPN when she made 4-5 trips to the French Embassy in Los Angeles to obtain her visa, a trip to Whittier for a SKYPE interview with Tony Dow, and a trip for LAX to France, then to Beirut. Opp. Facts Nos. 9, 10, 11; see also Additional Facts (“AFs”) Nos. 31, 32 However, the only evidence submitted in support of these Opp. facts is the Declaration of Maissaa Mousa, pages 2-6. The fact that Mousa travelled from LAX to France and to Beirut would not constitute work performed in California. As discussed above, the California Labor Code would not apply where the work was performed outside of California. Sarviss, supra, 663 F.Supp.2d at 900. Moreover, Mousa’s cursory and conclusory statement that she performed 80 hours of work to obtain a visa by visiting the French Embassy four times, and she was interviewed by Tony Dow via Skype, and that she was entitled to be paid for this time spent, is without any evidentiary significance. Mousa fails to submit any evidence that the parties agreed that Mousa would be compensated for this time spent in obtaining a Visa and/or interviewing with Tony Dow.

First, as noted above, the parties agreed that Mousa’s work would start with a trip and on the first day of travel.[1] Second, Mousa did not present any evidence that her time spent on obtaining a Visa and interviewing the Tony Dow was the performance of employment duties, as she presents no evidence that she was subject to IPN’s control during those hours:

Plaintiffs “may not rely upon the mere allegations or denials of [their] pleadings,” but must “set forth the specific facts showing that a triable issue of material fact exists.” (Code Civ. Proc., § 437c, subd. (p)(2).) “The party opposing the summary judgment must make an independent showing by a proper declaration or by reference to a deposition or another discovery product that there is sufficient proof of the matters alleged to raise a triable question of fact if the moving party’s evidence, standing alone, is sufficient to entitle the party to judgment. [Citations.] To avoid summary judgment, admissible evidence presented to the trial court, not merely claims or theories, must reveal a triable, material factual issue. [Citation.] Moreover, the opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation.” (Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1, 10–11 [130 Cal. Rptr. 2d 263] (Wiz Technology).)

Trujillo v. First American Registry, Inc. (2007) 157 Cal.App.4th 628, 635 (bold emphasis added).

We glean no magic formula for determining whether the requisite employment relationship exists. The prevailing view is to consider the totality of the circumstances, reflecting upon the nature of the work relationship between the parties, and placing emphasis on the control exercised by the employer over the employee’s performance of employment duties. (Vernon v. State of California, supra, 116 Cal.App.4th at pp. 124–125.) Consequently, when a statute fails to define the term “employee,” courts routinely look at the common law definition for guidance, focusing on the amount of control the employer exercises over the employee. (Metropolitan Water Dist. v. Superior Court (2004) 32 Cal.4th 491, 500–501 [9 Cal. Rptr. 3d 857, 84 P.3d 966] (Metropolitan).)

Bradley v. Department of Corrections & Rehabilitation (2008) 158 Cal.App.4th 1612, 1626 (bold emphasis added).

One of the most important factors in the definition of “employee” is the employer’s ability to control employment opportunities. (See Simpson v. Ernst & Young (6th Cir. 1996) 100 F.3d 436, 442; Nationwide Mut. Ins. Co. v. Darden (1992) 503 U.S. 318 [117 L. Ed. 2d 581, 112 S. Ct. 1344].)

Patricia Adkins Ins. Agency, Inc. v. State Farm Mutual Automobile Ins. Co. (2007) 146 Cal.App.4th 526, 533 (bold emphasis added).

The fact that May Dow wrote a letter to the French Consulate indicating that Mousa would work in the Los Angeles office upon her return from the orientation trip (October 24, 2012 letter; AF Nos. 30, 33; Pltf’s Exh. 1) does not mean that the Labor Code applies to Mousa’s work performed abroad, because Mousa quit her employment before performing any work in California. As discussed above, the California Labor Code would not apply where the work was performed outside of California. Sarviss, supra, 663 F.Supp.2d at 900. As also discussed above, Mousa did not perform any work in California.

Accordingly, Mousa has failed to meet her burden of citing evidence sufficient to raise a triable issue of material fact. The motion for summary adjudication as to Issue No. 1 re: the second cause of action is GRANTED.

2. Issue No. 2: “Cross-Complainant’s second cause of action for violation of California Labor Code §§ 510, et seq., 226.7 and 203.1 fails because Cross-Complainant was exempt from the requirements of these provisions of being a “personal attendant” under Cal. Code Regs., tit. 8 11150 subd. 2(J) in 2012.”

Moreover, even assuming that the Labor Code applied to work Cross-Complainant Mousa performed outside of California, in Beirut, or because Mousa was going to perform services in California upon her return (which she never did because she quit upon returning to America), it is undisputed that Mousa was exempt from overtime, meal period and rest break requirements as a “personal attendant” under IWC wage order No. 15-2001, codified at 8 CCR § 11150. Mousa’s job duties were entirely[2] in the nature of those required of a “personal attendant,” which includes supervising, feeding or dressing a person who by reason of advanced age, physical disability or mental deficiency needs supervision. 8 CCR § 11150(2)(J). A “personal attendant” is exempt from the applicability of Wage No. Order 15-2001. 8 CCR § 11150(1)(B). It is undisputed that the majority of Mousa’s actual job duties she performed while in Beiruit included helping Dow get up in the morning, helping him to get up and sit down, helping him attend the bathroom, helping him bathe, helping him dress, helping him to go to bed, massaging him to improve his blood circulation. UF Nos. 16 – 27 and supporting evidence.

In the opposing separate statement, Mousa does not dispute the foregoing characterization of her job duties while working for Dow in Beirut. Instead, Mousa claims that she was not considered a “personal attendant” because she was hired to be a nurse who spoke Arabic and was supposed to work with IPN’s patients in California and abroad. This argument ignores that fact that Mousa never actually performed such services in California. Moreover, Mousa argues that she was not hired to be a personal attendance to Tony Dow, and only went to Lebanon for training purposes to work with IPN’s VP, to be trained on how to take care of IPN’s patients. Yet, regardless of whatever work she would have performed in the future in California, Mousa is not suing to recover for such work that she never performed. Instead, she is suing to recover for the work she actually performed while in Lebanon. As discussed above, it is undisputed that the actual work Mousa performed in Lebanon was more than 20% in the nature of a “personal attendant.”

Further convincing the Court that Mousa’s position is without merit, she relies upon a depublished case that is not citable because it was superseded by grant of review. Gerard v. Orange Coast Memorial Medical Center (2015) 234 Cal.App.4th 285 (2015 WL 535730).

As an alternative basis, the motion for summary adjudication as to Issue No. 2 re: the second cause of action is GRANTED.

Moving part to give notice, unless waived.

IT IS SO ORDERED.

Dated: May 24, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court

[1] To the extent that Mousa might claim she was entitled to be compensated for time spent traveling to France and Beirut, Mousa did not plead this theory of recovery in the operative first amended cross-complaint. A party opposing summary judgment cannot do so by showing a triable issue as to an unpled theory. “The complaint serves to delimit the scope of the issues before the court on a motion for summary judgment [citation], and a party cannot successfully resist summary judgment on a theory not pleaded.” (Citation omitted.)” Bosetti v. United States Life Ins. Co. in City of New York (2009) 175 Cal.App.4th 1208, 1225 (bold emphasis added). See also Van v. Target Corp. (2007) 155 Cal.App.4th 1375, 1387 (“[A] summary judgment motion is directed to the issues framed by the pleadings. [Citations.] Those are the only issues a motion for summary judgment must address. [Citations.]” (Citation omitted.))”

[2] The personal attendant exemption applies when “no significant amount of work other than” supervising, feeding or dressing a dependent child or person is required. 8 CCR § 11150(2)(J). The courts have set forth a 20% threshold for determining whether a “significant amount of work” is being performed. See Cash v. Winn (2012) 205 Cal.App.4th 1285, 1299.