Case Name: Quintero v. Unified Protective Services, Inc., et al.
Case No.: 16CV298942

After full consideration of the evidence, the separate statements submitted by the parties, and the authorities submitted by each party, the court makes the following rulings:

On July 9, 2013, defendants Wal-Mart Stores, Inc. (“Walmart”) and Unified Protective Services, Inc. (“Unified”) signed a Security Services & Systems Master Agreement, wherein Unified was contracted to provide security services to Walmart. (See evidence cited by separate statement of undisputed material facts, no. (“UMF”) 1.) An addendum to the agreement was executed on May 20, 2014, and pursuant to the addendum, Unified agreed to provide “one (1) outside facility security guard” from 10 am (10:00) until 12 midnight (24:00), seven days a week. (See UMFs 2-3.) Unified determined the scheduling of its employees, and Walmart paid a contractual rate to Unified for work performed; however, Unified determined the amount to pay each security guard, aside from its compliance with applicable state laws. (See UMFs 4-5.) Pursuant to the agreement and addendum, Unified was required to provide all necessary equipment for its security guards; however, Walmart provided a radio to enable communication with its facility management. (See UMF 6.)

Pursuant to the agreement, Unified agreed to have its employees conduct themselves in a professional and courteous manner, appropriately attired, trained, and groomed, and consistent with Walmart’s first class operations and facilities. (See UMF 7.) Unified further agreed that if one of its employees failed to comport with that standard, Walmart, in its sole discretion, may deny entry to or remove from the premises any such employee who violated any of Walmart’s rules or regulations. (See UMF 8.) Pursuant to the agreement, the parties agreed that its employees may not exercise control of each other’s employees. (See UMF 9.) Unified invoiced Walmart for services provided and Walmart paid Unified pursuant to the invoices. (See UMF 10.) Walmart did not pay any Unified employees directly, and was not privy to the terms and conditions of employment between Unified and its employees. (See UMF 11.)

On June 14, 2014, plaintiff Jesus Quintero (“Plaintiff”) applied to work as a security guard for Unified. (See UMF 12.) After an interview, Unified manager offered Plaintiff a job and told him how much he would be paid and the hours of his shifts, and also presented Plaintiff with a written employment agreement, which Plaintiff signed. (See UMFs 13-16.) The employment agreement, which appeared on Unified letterhead, stated that it was an agreement between Unified and Plaintiff and stated that “Company has hired the Employee to perform services on behalf of Company.” (See UMFs 17-18.) The employment agreement did not have Walmart’s name or logo on it. (See UMF 19.) After accepting the position, Plaintiff met with the Unified manager for several hours, during which time, he: signed hiring documents that bore Unified’s logo, was provided a Unified employee handbook; received training on how to conduct his job as a security guard; was given a tour of the Walmart parking lot; was shown many homeless people who trespassed in the parking lot and was given a demonstration as to how Plaintiff should contact them and ask them to leave the parking lot; received instruction on how to speak with individuals who were barbequing in the parking lot; was shown how to patrol the parking lot with the Unified patrol car; was instructed to be alert and trained on how to respond in the event that he witnessed an individual stealing, or an emergency, such as a car theft or a fight; and provided with a uniform which consisted of green pants and a gray, long-sleeve shirt that bore the logo of Unified. (See UMFs 20-32.)

After completing the on-boarding documents and training, and receiving his uniform, Plaintiff was placed by Unified to work as a security guard at the Walmart on Story Road and later, a Walmart store in Milpitas. (See UMFs 33-34.) Plaintiff received his work schedule from Unified. (See UMFs 35-37.) Upon arrival, Plaintiff would call an operator for Unified to report he was present, retrieve the key to his patrol car either from the security guard he was relieving, or at Walmart’s Loss Prevention office, and then patrol the parking lot in the Unified patrol car. (See UMFs 38-40.) Plaintiff would write a daily report detailing incidents that occurred during his shift and leave the reports in the patrol car for his supervisor at Unified to pick up. (See UMF 41.) Plaintiff did not give any written reports to Walmart employees. (See evidence cited by UMF 42.) Plaintiff would notify Walmart management when he was taking a lunch break, but Walmart did not tell him that he could not take a lunch or that he had to remain on premises during his lunch. (See UMF 43.) Plaintiff would notify Walmart management when he had to leave the parking lot to gas up the patrol car so that management was aware that there was no security coverage, and would receive a credit card from Unified to gas up the patrol car. (See UMFs 44-45.) Plaintiff recorded his hours worked on written timesheets provided by Unified. (See UMF 48.) Plaintiff would take a picture of the completed timesheet and then send it to Unified so that Unified would pay him for his work. (See UMFs 50, 52.) Unified paid Plaintiff by check, which was mailed to him directly; Plaintiff was not paid by Walmart. (See UMFs 53-54.) If Plaintiff had a concern about his wages, Plaintiff directed that concern to Unified, not Walmart. (See UMF 56.)

Ultimately, Walmart’s store manager had concerns as to whether Plaintiff was adequately fulfilling the terms of the Unified agreement, and raised them to Unified management. (See UMFs 57-58.) On June 20, 2016, Plaintiff was told by Walmart’s store manager that he was not doing a good job and was directed to get off of the premises. (See Pl.’s additional undisputed material fact, number (“ADF”) 34.) Plaintiff was told by his supervisor at Unified that he was no longer wanted at the Walmart store location but that he would relocate Plaintiff to a different site. (See UMF 61.) Plaintiff’s supervisor at Unified, in fact, left multiple messages for Plaintiff regarding his next location; however, Plaintiff never called him back because he was very sad and thought it was the end of his job, even though his supervisor told Plaintiff that he was attempting to find Plaintiff another location. (See UMF 61.)

On August 23, 2016, Plaintiff filed a complaint against all Defendants, asserting causes of action for:

1) Violation of Labor Code §§ 510, 1194, 1197, 1194, 1771 and 1776—failure to pay overtime wages and to pay for all hours worked;
2) Violation of Labor Code § 226—failure to provide accurate itemized wage statements;
3) Violation of Labor Code § 203—waiting time penalties; and,
4) Unfair business practices.

Defendant Walmart moves for summary judgment on the ground that it is not Plaintiff’s employer because Unified had total control over Plaintiff’s wages, hours worked and working conditions; Walmart did not suffer or permit Plaintiff to work because Plaintiff worked solely at the direction of Unified and Walmart knew that Plaintiff worked at Unified’s sole direction; and, Walmart did not enter into a common law employment relationship with Plaintiff because it lacked the right to control Plaintiff’s employment and therefore could not terminate, promote, direct, or alter the terms and conditions of Plaintiff’s employment with Unified.

Defendant’s burden on summary judgment

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)

Defendant Walmart meets its initial burden to demonstrate that it is not Plaintiff’s employer.

Both parties agree that Martinez v. Combs (2010) 49 Cal.4th 35, outlines the standards for determining the existence of an employment relationship. (See Pl.’s opposition to motion for summary judgment (“Opposition”), pp.10:28, 11:1-25 (stating that Martinez “outlined the applicable standards for analyzing and determining whether an employment relationship exists”); see also Walmart’s memorandum of points and authorities in support of motion for summary judgment, pp.7:26-28, 8:1-25, 11:18-28, 12:1-3.) Plaintiff acknowledges that his causes of action are premised on the Industrial Welfare Commission’s wage order No. 7-2001, which defines “employer” as a person or business “who directly or indirectly, or through an agent or any other person, employs or exercises control over the wages, hours, or working conditions of any person.” (Cal. Code Regs., tit. 8, § 11070, subd. 2 (F).) “’Employ’ means to engage, suffer, or permit to work.” (Cal. Code Regs., tit. 8, § 11070, subd. 2(D).)

Here, Walmart presents evidence that: Plaintiff applied to work for Unified; Plaintiff was hired by Unified; Plaintiff was trained by Unified; Plaintiff reported to Unified; Plaintiff wore a Unified uniform; Plaintiff worked under the direction of Unified; Plaintiff was assigned by Unified to work at locations for certain specified shifts; Plaintiff was given a credit card by Unified to fuel up the Unified patrol vehicle; Plaintiff submitted timesheets to Unified; and, Plaintiff was paid by Unified. Walmart had a contractual relationship with Unified, performed pursuant to that contract and expected that Unified would pay its employees. (See evidence cited by UMFs 1-61.) Walmart meets its burden to demonstrate that it did not directly or indirectly employ or exercise control over the wages, hours or working conditions of Plaintiff, or suffer or permit Plaintiff to work for it. (See Martinez, supra, 49 Cal.4th at p. 64 (stating “[t]o employ, then, under the IWC’s definition, 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 employment relationship”).) Walmart meets its burden to demonstrate that it is not Plaintiff’s employer under any of the definitions of “employer.”

In opposition, Plaintiff fails to demonstrate the existence of a triable issue of material fact.

In opposition, Plaintiff argues that Walmart exercised significant control over Plaintiff’s wages, hours and working conditions because the Post Orders outlined very specifically what duties Unified security officers had, how they were to perform them, how they were to conduct themselves when interacting with Walmart employees and customers, how they were to conduct themselves while on Walmart property and how they would handle security issues that should arise. The Post Orders describe how Unified security officers should: not discriminate or profile a customer based on race, age, sex, ethnicity or religion, not use force or touch anyone, not carry weapons, cooperate with law enforcement, communicate with customers in an honest and respectful manner, take all scheduled breaks, wear a seatbelt and be aware of other cars and pedestrians while on patrol in the parking lot, observe and report incidents. (See Rusnak decl., exh. B, exh.6.)

However, in Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289, the plaintiff was a station manager hired by a third party operator, ARS, to manage a Shell gas station. (Id. at pp.293-295.) Shell moved for summary judgment, and the plaintiff argued in opposition that a reasonable jury could find that Shell was her joint employer because it mandated how the business would be operated primarily by service station employees. (Id. at p.298.) Plaintiff contended that the Multi-Site Operator (MSO) agreement between Shell and ARS and Shell’s various operating manuals detailing her daily tasks created a triable issue of material fact. (Id. at pp. 302-303.) The Curry court concluded that the MSO agreement and the operating manuals failed to demonstrate a triable issue of material fact because while Shell had control over ARS and ARS exercised control over the plaintiff, and while Shell required ARS to perform certain tasks, the plaintiff failed to show that Shell had control over the plaintiff’s working conditions, as Shell did not mandate how many employees or who would execute tasks, and Shell had no control over the plaintiff’s wages. (Id. at pp.303-304.) Likewise, in Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, the court, citing Curry, found that detailed station operation manuals provided by Shell again did not demonstrate the existence of a triable issue of material fact because the third party service station operator, Danville, was responsible for directing its employees’ compliance with the manuals. (Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111 at pp.*4-*7.) Similarly, Plaintiff cannot maintain a claim based on a common law employment relationship as: Plaintiff has not demonstrated that Walmart required Plaintiff specifically to perform certain tasks; Walmart did not have input on the hiring process of Plaintiff; while Walmart could request that an employee be removed from its location, it could not and did not terminate Plaintiff’s employment with Unified; Plaintiff was not paid by Walmart; and, Walmart was not in the business of providing outdoor parking lot security patrol services. (See Curry, supra, 23 Cal.App.5th at pp.305-308.) While Walmart required that Unified perform tasks as outlined in the Post Orders pursuant to its agreement, and Unified exercised control over Plaintiff, Plaintiff fails to demonstrate that Walmart had control over Plaintiff’s wages, hours, or working conditions. Plaintiff fails to demonstrate a triable issue of material fact as to the first definition of “employer,” pursuant to Martinez, supra, 49 Cal.4th at p. 64.

Walmart’s store manager’s statement that Plaintiff was not doing a good job and demand to leave the premises also fails to demonstrate a triable issue of material fact as to joint employer liability. Here, it is clear that Plaintiff was not terminated from Unified; Plaintiff testified that his supervisor told him that he would find another location at which to work and was eventually called on multiple occasions and left messages for Plaintiff about other locations for a security guard but that Plaintiff never returned his supervisor’s phone calls because he “was very sad.” The agreement between Unified and Walmart allowed Walmart to remove a Unified employee from a location for failure to fulfill the contractual obligations and also provided that Unified and not Walmart exercised control over Unified’s employees. In Henderson, supra, the MSO agreement provided that Danville had the right to terminate its employees and maintained control over their daily work activities, while Shell also retained the right to ask Danville to remove an employee from a Shell-owned station. (See Henderson, supra, 40 Cal.App.5th at p.*5.) The Henderson court found that the plaintiff failed to demonstrate the existence of a triable issue of material fact as to whether Shell suffered or permitted the plaintiff to work, stating that “Shell cannot have acquiesced to Henderson’s employment because Shell had no power to fire plaintiff, hire his replacement, or prevent him from working for Danville.” (Id.) It is clear Walmart similarly cannot have acquiesced to Plaintiff’s employment since it lacked any power to fire Plaintiff, hire Plaintiff’s replacement or prevent Plaintiff from working for Unified. Walmart’s removal of Plaintiff pursuant to the agreement between it and Unified does not demonstrate a triable issue of material fact under any definition of “employer,” pursuant to Martinez, supra, 49 Cal.4th at p. 64.

Plaintiff also argues that the provision of the walkie talkie demonstrates Walmart’s “significant and direct control” over Plaintiff’s day-to-day employment. (Opposition, p.13:12-22.) Here, the provision of the walkie talkie does not itself demonstrate significant and direct control. In fact, Plaintiff both testified and stated in his declaration that he did not always carry the walkie talkie. (See Pl.’s depo, pp.42:18-25, 43:1; see also Pl. decl., ¶ 11.) Plaintiff’s evidence regarding the provision of a walkie talkie fails to demonstrate the existence of a triable issue as to Walmart’s control over Plaintiff’s wages, hours, or working conditions.

Lastly, Plaintiff argues that Unified cannot be considered an independent contractor, citing Dynamex Operations West, Inc. v. Super. Ct. (Lee) (2018) 4 Cal.5th 903. However, this argument is misplaced as this is a case involving joint employer liability. Dynamex, supra, involved whether a class of delivery drivers were misclassified as independent contractors. Henderson, supra, expressly noted that Dynamex does not apply to a joint employer claim. (See Henderson, supra, 40 Cal.App.5th at pp.*8-*11 (stating “the Dynamex ABC test does not apply in the joint employment context”).) This argument is without merit.

Accordingly, as Plaintiff fails to demonstrate a triable issue of material fact as to a lack of an employment relationship between Walmart and Plaintiff, Walmart’s motion for summary judgment is GRANTED.

Plaintiff’s request for judicial notice is DENIED as irrelevant.

Walmart’s objections to portions of Plaintiff’s declaration are not the basis for the order.

Plaintiff’s objections 1-3 to Russell Hinds’ declaration are OVERRULED.

The Court shall prepare the Order. After the Court has served the signed order, Walmart shall submit a proposed judgment.