Filed 2/21/20 Alcazar v. Idexx Laboratories CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JOSEFINA ALCAZAR et al.,

Plaintiffs and Appellants,

v.

IDEXX LABORATORIES, INC., et al.,

Defendants and Respondents.

G057319

(Super. Ct. No. 30-2017-00939483)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Walter P. Schwarm, Judge. Affirmed.

Munoz & Associates and Edward R. Munoz; Ledezma Law Group and Jorge Ledezma; Law Offices of Timothy J. Swift and Timothy J. Swift for Plaintiffs and Appellants.

Jackson Lewis, Jared L. Bryan, Jessica B. Armijo, and Dylan B. Carp for Defendants and Respondents.

This case is a personal injury action arising out of a vehicle collision between Josefina and Maria Alcazar (collectively referred to as Alcazar) and Frank Walter Peters. Alcazar asserted two negligence-based causes of action against Peters, a courier driver who crashed into Alcazar’s car, and Laboratory Express, Inc. (Lab Express), the courier company Peters worked for. Alcazar also named as defendants businesses that used Lab Express as a courier vendor: IDEXX Laboratories, Inc., IDEXX Distribution, Inc., and IDEXX Veterinary Services, Inc. (collectively referred to as IDEXX). IDEXX filed a motion for summary judgment stating it was not Peters’ employer. The trial court agreed and granted IDEXX’s motion for summary judgment. Finding no error, we affirm the judgment.

FACTS

Lab Express is a transportation business. Lab Express hired Peters as a courier from 2016 to 2017. Lab Express paid Peters by the job. Peters’ contract with Lab Express gave Lab Express the right to terminate him.

IDEXX is a veterinary reference laboratory testing business. In 2017, IDEXX entered into a transportation agreement with Lab Express. Under the transportation agreement, Lab Express served as IDEXX’s courier vendor in Southern California.

IDEXX designed the routes serviced by Lab Express’s couriers. Lab Express found drivers to drive the routes it was assigned. IDEXX did not assign couriers to routes or hire couriers, nor did it fire them. IDEXX electronically transmitted pick-up data to Lab Express. Lab Express conveyed the information to its couriers through its own application. IDEXX’s and Lab Express’s systems were independent.

Lab Express assigned Peters his routes. Lab Express required its drivers to log in on their mobile device each time they stopped at a location to pick up specimens. This created a record of the time each driver reached each location. This data was transmitted in real time to IDEXX. To this extent, IDEXX was able to monitor whether and when the Lab Express courier serviced its clients.

Peters did not negotiate with IDEXX about his Lab Express compensation. Peters received no training from IDEXX and had no day-to-day contact with IDEXX. Peters’s sole communication with IDEXX was about a problem he had picking up specimens from one specific IDEXX customer. Peters did not believe IDEXX was his employer.

In June 2017, Peters was driving his car on the 91 Freeway when he struck Alcazar’s vehicle. At the time of the accident, Peters was working as a courier for Lab Express, en route to IDEXX’s Irvine laboratory.

In the operative complaint, Alcazar sued all defendants for negligence, and sued Lab Express and IDEXX for negligent hiring, training, supervision, and retention of Peters. The trial court granted IDEXX’s motion for summary judgment. The court determined IDEXX did not have complete or authoritative control over how Peters performed his work necessary to give rise to an employment relationship. “[T]he court finds that there [is] no triable issue of material fact as to [IDEXX’s] right to control how [Peters] performed his work. . . . [IDEXX] did not have the ability to control . . . Peters by terminating his contract or by controlling his pay. The only inference from these facts is that [IDEXX] did not have the right to control . . . Peters. Thus, the court finds that there is not triable issue of a material fact regarding whether . . . Peters was [IDEXX’s] employee.”

DISCUSSION

Alcazar asserts Peters was jointly employed by Lab Express and IDEXX at the time of the accident. Whether IDEXX is liable for Peters’ purported negligence on a respondeat superior theory, or whether IDEXX can be liable for negligently hiring, training, supervising, or retaining Peters turns on whether IDEXX employed Peters. The trial court correctly applied California’s common law test for employment, determining there was no evidence IDEXX exercised any control over Peters or otherwise acted in such a way as to create an employment relationship with him. We find no error.

I. Standard of Review and Applicable Law

“Summary judgment is appropriate if ‘there is no triable issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).) To meet its initial burden in moving for summary judgment, a defendant must present evidence that either ‘conclusively negate[s] an element of the plaintiff’s cause of action’ or ‘show[s] that the plaintiff does not possess, and cannot reasonably obtain,’ evidence necessary to establish at least one element of the cause of action. [Citation.] Once the defendant satisfies its initial burden, ‘the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.’ [Citation.] When considering an appeal from a grant of summary judgment, we independently review the record, ‘liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party.’ [Citation.]” (Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, 1116-1117 (Henderson).) “[T]he ‘existence of an employment relationship is a question for the trier of fact, but can be decided by the court as a matter of law if the evidence supports only one reasonable conclusion.’” (Beaumont-Jacques v. Farmers Group, Inc. (2013) 217 Cal.App.4th 1138, 1142-1143 (Beaumont-Jacques).)

The general approach to determine whether a worker is an employee is defined in the seminal case of S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello). “‘[T]he principal test of an employment relationship is whether the person to whom the service is rendered has the right to control the manner and means of accomplishing the result desired. . . . ’ [Citations.]” (Id. at p. 350.) While “the right to control work details is the ‘most important’ or ‘most significant’ consideration, the authorities also endorse several ‘secondary’ indicia of the nature of a service relationship.” (Ibid.)

The right to discharge at will without cause is strong evidence of an employment relationship. (Borello, supra, 48 Cal.3d at p. 350.) Additional 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 a part of the regular business of the principal; and (h) whether or not the parties believe they are creating the relationship of employer-employee. [Citations.]” (Id. at p. 351.) ‘“Generally, . . . the individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations.’ [Citation.]” (Ibid.)

Both parties analyze this issue of Peters’s purported employment status with IDEXX under the common law test and secondary factors set forth in Borello. Alcazar also asserts the recent Supreme Court case in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903, applies. We disagree. Garcia v. Border Transportation Group, LLC (2018) 28 Cal.App.5th 558, 571 (Garcia), clarifies the “ABC test” set forth in Dynamex applies to wage order claims and did not reject Borello for non-wage order claims. Pursuant to Garcia, the common law test articulated in Borello applies in cases of tort liability like this one. (Id. at pp. 571-572.)

Furthermore, “[w]e conclude the Dynamex ABC test does not apply in the joint employment context.” (Henderson, supra, 40 Cal.App.5th at p. 1130.) “[T]he ‘ABC’ test set forth in Dynamex is directed toward the issue of whether employees were misclassified as independent contractors. Placing the burden on the alleged employer to prove that the worker is not an employee is meant to serve policy goals that are not relevant in the joint employment context. Therefore, it does not appear that the Supreme Court intended for the ‘ABC’ test to be applied in joint employment cases.” (Curry v. Equilon Enterprises, LLC (2018) 23 Cal.App.5th 289, 314.)

II. Analysis

Alcazar contends the trial court erred by entering summary judgment in favor of IDEXX because there was a triable issue of material fact as to whether Peters was an employee or independent contractor of IDEXX when the accident occurred. We find no error.

A summary of the pertinent undisputed facts is helpful. The parties do not dispute the following facts: (1) IDEXX is a veterinary reference laboratory testing business; (2) Lab Express is a transportation business; (3) the agreement between IDEXX and Lab Express states, “[c]ourier is engaged in the transportation business and by contracting with independent contractors . . . is able to render such pick-up and delivery services as IDEXX requires;” (4) IDEXX designed the routes serviced by Lab Express; (5) IDEXX sent pick-up data to Lab Express electronically; (6) Lab Express conveyed information to its couriers through Lab Express’s application; (7) There was no link between the courier’s equipment and IDEXX’s system; (8) IDEXX had the ability to monitor a courier’s route; (9) IDEXX did not assign couriers to the routes; and (10) Peters did not negotiate his compensation with IDEXX. Additionally, the undisputed evidence showed Peters had a contractual relationship with Lab Express, Peters believed he was employed by Lab Express, Lab Express paid Peters, IDEXX did not have the ability to terminate Peters, and IDEXX did not provide Peters with equipment, tools, or place of work necessary for him to work as a courier.

A. Right to Control

Alcazar focuses on four of the undisputed facts to contend IDEXX employed Peters. Specifically, that IDEXX told Lab Express where and when it wanted its customers’ specimens picked up and dropped off, IDEXX had the ability to monitor

the times of the pickups and drop-offs, IDEXX set minimum quality standards, and it was important to IDEXX that Lab Express perform the couriering timely and correctly. We agree with the trial court, “Although these additional facts tend to show that [IDEXX] exercised some degree of control over [Lab Express] for the purpose of providing services to [IDEXX’s] customers, this control relates to monitoring [IDEXX’s] contract with [Lab Express].”

The trial court and both parties cite to Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425 (Millsap), on the issue of right to control. In Millsap, plaintiff was injured when Christopher Pence struck her car. (Id. at p. 428.) At the time of the accident, Pence worked for delivery company NCE, which paid Pence to deliver packages to its customers and classified him as an independent contractor. (Id. at p. 431.)

Plaintiffs sued NCE for negligence, contending that Pence was NCE’s employee. (Id. at pp. 428-429.) The trial court granted summary judgment for NCE on the ground that Pence was not an employee, as a matter of law, and the court of appeal affirmed. (Id. at p. 435.) In support of its decision, the appellate court identified the following facts to establish Pence was an independent contractor: “Pence used his own car . . . to deliver the packages, furnished his own gas and oil, furnished his own liability insurance, and paid for whatever car repairs were necessary.” (Id. at p. 431.) Additionally, NCE paid Pence on a “‘per route’” basis, i.e., a lump sum based on the distance traveled to deliver thepackages. (Ibid.) NCE give him directions to particular locations and told him to deliver the packages in the order received. (Ibid.) “Pence was required to obtain a signed confirmation of delivery which he then returned to NCE.” (Ibid.) However, “NCE did not instruct Pence as to how to make the deliveries or how to drive his car.” (Ibid.) Under these facts, Pence was NCE’s independent contractor as a matter of law.

The Millsap facts are closely analogous to the underlying case, but here, IDEXX is one step further removed from the ability to control Peters’s work because Peters worked for Lab Express, not IDEXX. As in Millsap, Peters drove his

own car. Lab Express, not IDEXX, paid Peters a lump sum based on the distance traveled and number of stops. Lab Express told Peters where and when to pick up and drop off specimens; IDEXX, a step removed, supplied that information to Lab Express. Similar to Millsap, Lab Express required Peters to create a record of the time he reached each location. IDEXX, a step removed, received confirmation of the pickups and drop offs in real time. As in Millsap, there is no evidence that IDEXX instructed Peters how to drive his car.

Alcazar purports to distinguish Millsap because IDEXX required Lab Express to ensure the routes were staffed by qualified individuals, the routes were completed pursuant to IDEXX expectations, a Lab Express supervisor was available to communicate with IDEXX, and drivers used coolers to protect lab specimens

from direct contact with ice that could ruin the specimens. However, IDEXX taking steps to ensure Lab Express’s compliance with the underlying agreement and minimum quality standards was not complete or authoritative control necessary to establish an employment relationship between Peters and IDEXX.

III. Secondary Factors

Alcazar asserts the Borello secondary factors also created a triable issue of material fact as to whether Peters was IDEXX’s employee. We disagree.

As to the first factor of “the right to discharge at will, without cause,” it is undisputed Lab Express hired Peters. (Borello, supra, 48 Cal.3d at p. 350.) While IDEXX had the contractual ability to approve Lab Express’s courier assignments, Alcazar presented no evidence IDEXX maintained the ability to terminate Peters’s independent contractor agreement with Lab Express. This factor weighs against an employment relationship.

We turn to “whether the one performing services is engaged in a distinct occupation or business.” (Borello, supra, 48 Cal.3d at p. 351.) The undisputed evidence established Lab Express is a transportation business. It also showed IDEXX is a veterinary reference laboratory testing business. Common sense dictates, and the trial court determined, Peters, working as a courier for a transportation business, was not engaged in veterinary laboratory testing. This factor does not support an employment relationship.

The next factor analyzes “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.” (Borello, supra, 48 Cal.3d at p. 351.) Alcazar admits “drivers like Peters complete their routes without one-on-one supervision.” While IDEXX maintained the ability to monitor Peters’s completion of pickups and drop-offs, Alcazar cites to no factual or legal authority demonstrating this third-party monitoring system amounted to supervision. This factor weighs against an employment relationship.

As to “the skill required in the particular occupation,” at the hearing on IDEXX’s motion for summary judgment, IDEXX “acknowledge[d] there’s not a lot of skill in driving a car, but that’s only a secondary factor among eight other factors; that all other factors weigh heavily in finding that the only reasonable conclusion is one of not employer.” (Borello, supra, 48 Cal.3d at p. 351.) This factor weighs in favor of an employment relationship.

Under the next factor, “whether the principal or the worker supplies the instrumentalities, tools, and the place of work for the person doing the work,” IDEXX did not provide any tools or equipment to Peters. (Borello, supra, 48 Cal.3d at p. 351.) Alcazar concedes this weighs against an employment relationship.

Next, “the length of time for which the services are to be performed,” weighs against an employment relationship. (Borello, supra, 48 Cal.3d at p. 351.) Alcazar asserts Peters’s services “were to be performed over an extended or indefinite period of time,” but we disagree. Because there was no contract between IDEXX and Peters, there is no evidence about the length of time his services would be required. Additionally, Peters had the right, pursuant to his contract with Lab Express, to retain someone else to work his route as well as to end his relationship with Lab Express without cause, subject to a notice requirement.

“[T]he method of payment, whether by the time or by the job,” also weighs against an employment relationship. (Borello, supra, 48 Cal.3d at p. 351.) IDEXX did not pay Peters, it paid Lab Express.

We next look to “whether or not the work is a part of the regular business of the principal.” (Borello, supra, 48 Cal.3d at p. 351.) As discussed above, it was undisputed IDEXX is a veterinary reference laboratory testing business and Lab Express is a transportation business. Lab Express hired Peters as a courier. The trial court correctly determined Peters’s courier work was not part of IDEXX’s regular business because Peters “did not work in the business of veterinary laboratory reference testing.” This factor weighs against an employer relationship.

Finally, as to “whether or not the parties believe they are creating the relationship of employer-employee,” Alcazar concedes Peters did not believe IDEXX was his employer. (Borello, supra, 48 Cal.3d at p. 351.) This factor also weighs against an employer relationship.

Both the right to control test, as well as the secondary factors, demonstrate IDEXX did not employ Peters as a matter of law. The sole secondary factor that weighed in favor of an employment relationship was insufficient as a matter of law to find otherwise. “[E]ven ‘if one or two of the individual factors might suggest an employment relationship, summary judgment is nevertheless proper when . . . all the factors weighed and considered as a whole establish that [plaintiff] was . . . not an employee . . . . ’ [Citation.]” (Beaumont-Jacques, supra, 217 Cal.App.4th at p. 1147.) Under these facts, IDEXX made a prima facie showing that Peters was not its employee or agent. The evidentiary burden shifted to Alcazar to establish the existence of a triable issue of material fact. Alcazar failed to carry this burden.

DISPOSITION

The judgment is affirmed. IDEXX shall recover its costs on appeal.

O’LEARY, P. J.

I CONCUR:

IKOLA, J.
Moore, J., Dissenting.

I respectfully dissent. I think a jury might reasonably conclude that the courier (Peters) was an employee (or independent contractor) of the laboratory (IDEXX) when he allegedly injured the plaintiffs (Alcazar). Therefore, I would reverse the trial court’s granting of IDEXX’s motion for summary judgment.

To determine whether a worker should be classified as an employee, a jury is instructed to weigh several factors. (See CACI No. 3704 [“Existence of ‘Employee’ Status Disputed”].) One factor is whether the worker is engaged in the same business as the purported employer. Essentially, if the worker is engaged in the same business as the purported employer, then the worker is more likely to be deemed an employee. (S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 349-350 [a migrant farm worker who harvests cucumbers is engaged in the same business as the cucumber grower].) But if the worker is employed in a “distinct occupation or business” then the worker is less likely to be classified as an employee. (Id. at p. 351.)

Here, IDEXX is engaged in the business of collecting specimens (e.g., blood, urine) from its customers (veterinarians), and then analyzing those specimens in its laboratories. In order to do this, IDEXX relies on couriers (such as Peters) to pick up the specimens from its customers’ veterinary offices and then to timely deliver those specimens to its laboratories for testing. However, rather than hiring its own couriers, IDEXX contracts with Lab Express to provide it with a dedicated fleet of courier drivers.

The majority opinion states that IDEXX is engaged in the “laboratory testing business” and Lab Express is engaged in the “transportation business.” (Maj. opn., ante, at p. 9.) Based on this, the majority infers: “Common sense dictates, . . . Peters, working as a courier for a transportation business, was not engaged in veterinary laboratory testing. This factor does not support an employment relationship.” (Ibid.)

But I think a jury might view this factor differently. While it is certainly true that Peters was not engaged in the business of “laboratory testing” at the time of the accident, I think a jury could reasonably infer that IDEXX’s business is broader than “laboratory testing” and, in fact, includes the “transportation business.” By way of a simple analogy, many pizza parlors are not only engaged in the business of making pizzas, they are also engaged in the business of delivering pizzas. That is, I think a jury may reasonably conclude that Peters was engaged in a business (transportation) that was not entirely distinct from IDEXX’s business (transportation and laboratory testing).

Further, if this case were permitted to go trial, a jury would be instructed, “In deciding whether [IDEXX] was [Peters’] employer, the most important factor is whether [IDEXX] had the right to control how [Peters] performed the work, rather than just the right to specify the result.” (See CACI No. 3704.)

Here, there was some evidence that IDEXX had the right to control how Peters performed his work: IDEXX designed the routes driven by its designated couriers, IDEXX monitored the couriers’ progress along those routes, IDEXX established minimum standards for courier timeliness, and IDEXX established standards for how the couriers were to handle the specimens they were delivering.

The trial court described this “right to control” evidence as follows: “‘this control relates to [IDEXX] monitoring [its] contract with [Lab Express].’” (Maj. opn., ante, at p. 7.) But I’m not certain that a jury would necessarily come to the same conclusion, given that each juror would likely have his or her own unique perspective.

Since there are opposing inferences based on the undisputed evidence, I would reverse the trial court’s order granting IDEXX’s motion for summary judgment. (See Henderson v. Equilon Enterprises, LLC (2019) 40 Cal.App.5th 1111, 1116-1117 [courts are to construe the evidence against the party moving for summary judgment].)

MOORE, J.